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ZAMBIAN OPEN UNIVERSITY

SCHOOL OF LAW

Module: Law of Evidence

LL 16

Dr. Munyozwe Hamalengwa

BA (York), MA (Carleton), PG Dip (UDC), JD, LLM, PhD (Toronto).
First Edition 2019
© ZAOU
ISBN:
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TABLE OF CONTENTS

Page

Table of Contents..............................................................................................................................i

Foreword..........................................................................................................................................v

Acknowledgements........................................................................................................................vii

Preface..........................................................................................................................................viii

List of Cases....................................................................................................................................ix

List of Statutes...............................................................................................................................xv

Statutory Instruments....................................................................................................................xvi

Unit 1: Preliminaries……………………………………………………………..………………1

Topic 1 - Sources of the Law of Evidence in Zambia…………………………………………….1

Topic 2 - Admissibility, Relevance and Weight…………………………………………………..4

Topic 3 - Direct and Circumstantial Evidence…………………………………………………….5

Topic 4 - Judicial Discretion……………………………………………………………………..10

Unit 2: Burden and Standard of Proof……………………………………………………......11

Topic 1 - Burden of Proof………………………………………………………………………..11

Topic 2 - Standard of Proof…………………………………………………………………..….16

Unit 3: Presumptions………………………………………………………………………….18
Topic 1 - Types of Presumptions…………………………………………………………….…18

Topic 2 - Basis of Presumptions…………………………………………………………………19

Topic 3 - Specific Presumptions…………………………………………………………………19

Unit 4: Judicial Notice…………………………………………………………………..…..….26

Topic 1 - Judicial Notice…………………………………………………………………………26
 ii

Unit 5: Estoppels……………………………………………………………………………......29
Topic 1 - Estoppel by record……………………………………………………………………..29

Topic 2 - Estoppel by Deed……………………………………………………………………...31

Topic 3 - Estoppel by Conduct…………………………………………………………………..31

Unit 6: Witnesses: Competence and Compellability…………………………………………33

Topic 1 - The Accused…………………………………………………………………………...33

Topic 2 – Spouses………………………………………………………………………………..35

Topic 3 – Children…………………………………………………………………………….....36

Topic 4 - Other categories of witnesses………………………………………………………….37

Topic 5 - Civil Proceedings……………………………………………………………………...38

Unit 7: Examination of Witnesses…………………………….……………………………….40

Topic 1 - Examination-In-Chief………………………………………………………………….40

Topic 2 - Cross Examination…………………………………………………………………….44

Topic 3 - Re-examination………………………………………………………………………..47

Unit 8: Corroboration…………………………………………….…………………………….48
Topic 1 - Corroboration required by statute…………………………………………………..…49

Topic 2 - Cases where corroboration warning is required……………………………………….50

Unit 9: Evidence of Character…………………………………………………………………54

Topic 1 - Good character……………………………………………………………………...…54

Topic 2 - Bad Character……………………………………………………………………….…56

Topic 3 - Civil Cases…………………………………………………………………………….59

Unit 10: Similar fact Evidence……………………………………………………………....…62

Topic 1 - General principles……………………………………………………………………..62

Topic 2 - Admissibility of Similar fact Evidence………………………………………………..63

 iii

Topic 3 - Use of similar fact evidence in civil matters…………………………………………..67

Topic 4 - Use of similar fact evidence by the defence………………………………………...…67

Unit 11: Privilege………………………………………………………...……………………...69

Topic 1 –Legal Professional privilege…………………………………………………………...69

Topic 2 - Statements made without prejudice……………………………………………………70

Topic 3 - Privilege against self-incrimination…………………………………………………...71

Topic 4 - Journalistic immunity………………………………………………………………….72

Topic 5 - Communications between spouses…………………………………………………….72

Unit 12: Public Policy or Public Interest Privilege (Immunity)………………………..……74

Topic 1 - State interests (security)……………………………………………………………….74

Topic 2 – Police informants……………………………………………………………………...75

Topic 3 –Local government……………………………………………………………………...80

Topic 4 - Parliamentary proceedings.............................................................................................80

Unit 13: Opinion evidence………………………………………………………..…………….82

Topic 1 – Non-expert witnesses………………………………………………………………….82

Topic 2 - Expert witnesses……………………………………………………………………….84

Topic 3 - Proof of age……………………………………………………………………………88

Unit 14: Rule against hearsay……………………………………………….…………………90

Topic 1 - The Rule…………………………………………………………………………….....90

Topic 2 - Exceptions to the hearsay rule……………………………………………………...….92

Unit 15: Confessions………………………………………………………..…………………..98

Topic 1 - Basic principles…………………………………………………………………….….98

Topic 2 – Trial-within-a-trial……………………………………………………………….…100

Topic 3 - Judicial Discretion………………………………………………………………...….102

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Topic 4 - Statements made in the presence of a party……………………………………….…103

Unit 16: Illegally Obtained Evidence………………………….……………………………..106

Topic 1 – Origin of illegally obtained evidence………………………………………………..106
Topic 2 – Illegally Obtained Evidence in Zambia……………………………………………...106
Topic 3 - How illegally obtained evidence is treated in other jurisdictions…………………....108

Topic 4 - Challenges pertaining to the use of illegally obtained evidence in Court in Zambia
and in other jurisdictions………………………………………………………………..109

Topic 5 – Proposals for Reform in Zambia…………………………………………………….111

Unit 17: Evidence of Identification…………………………………….……………………..113

Topic 1 - General principles……………………………………………………………………113

Topic 2 - Means of identifying the accused………………………………………………….…116

Unit 18: Documentary and real evidence…………………………………………………….121

Topic 1 - Proving the contents of a document………………………………………………….122

Topic 2 - Extrinsic evidence of terms of the a document……………………………………....126

Topic 3 - Proof of due execution of private documents………………………………………...128

Topic 4 – Real Evidence………………………………………………………………………..129

BIBLIOGRAPHY……………………………………………………………………………....131
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FOREWORD

Dr. Munyonzwe Hamalengwa is on a mission to contribute to the hitherto scare scholarly legal
publications in virtually all fields. Central to this mission is to include as many recent Zambian
authorities as possible. In this publication of the Law of Evidence, he has succeeded. My
commentary is concentrated on how to now treat foreign precedents while lauding local
authorities.

There is a compelling need for us to have home-grown laws particularly in the area of civil
procedure at High Court level and above where excessive reliance is placed by practitioners and
the Courts on the English Rules of the Supreme Court (RSC) (1999 Edition). One hardly comes
across a high court application, in civil causes and matters, where the RSC is not cited as
authority for the application even in instances where our own High Court Rules, Chapter 27 of
the Laws of Zambia, are adequate. The situation in judicial review matters is even more
concerning in that the practice and procedure of this area of law in Zambia is solely regulated by
Order 53 of the English RSC. My take, however, is that the process of divorcing ourselves from
the antiquated British laws must be approached cautiously and, perhaps, in a staged fashion to
avoid creating unintended lacunas. A great deal of intellectual capital must be invested in such an
enterprise with the intended goal of improving and simplifying our law. Also, there are certain
areas of our law which are still in their nascent stages of development about which we might still
need to rely on foreign law for the time being. I have in mind intellectual property law,
information and communication technology law, securities regulation, among others. It is,
therefore, important for us to remind ourselves that a complete divorce may not be achieved
overnight.

As this discussion proceeds, it might just be necessary to clarify to all and sundry that
Zambianisation of the laws is targeted at English statutes, which still grace our statute books,
e.g., High Court civil procedure which is governed by the English RSC in default of a local
procedure or even old English statutes that govern certain aspects of Zambian law like
Partnership Act, 1890, Sale of Goods Act, 1893, and Bills of Exchange Act, 1882. It would be
nice to point out that the Zambianisation of these statutes (i.e., repealing and replacing them with
local statutes enacted by the Zambian Parliament), will not entirely keep the influence of English
 vi

and other foreign laws out of the Zambian jurisprudential space. In deciding novel cases which
come before them, our judges should be free, and even encouraged, to consult similar decided
cases of superior courts in foreign jurisdictions in order to reach quality decisions which would
enrich our jurisprudence.

The importance of the persuasive authority represented by foreign case law was underscored by
Ngulube, C.J., as he then was, in the case of Michael Sata v The Post Newspapers Limited and
Another 1992/HP/1385 & 1993/HP/821 (Unreported) when he rendered himself thus:

―I make reference to the international instruments because I am aware of a growing movement

towards acceptance of the domestic application of international human rights norms not only to
assist resolve any doubtful issues in the interpretation of domestic law in domestic litigation but
also because the opinions of other senior Courts in the various jurisdictions dealing with a
similar problem to have a persuasive value. At the very least, a consideration of such decisions
may help us to formulate our own preferred direction which, given the context our own situation
and the state of our own laws, may be different to a lesser or greater extent.‖ (Underlining mine)

Machipisha Muswalo,

Lusaka

August 2018.
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ACKNOWLEDEMENTS

Zambia has a very small and busy intellectual community. That is one of the reasons why
Zambian legal scholarship has been judged to be declining. However, if that existing scholarship
was to be harnessed, it would be potent. There are a few solid young students and legal
practitioners who are quite promising. I located one such law graduate, Edwin Mbewe II whom I
unleashed to find all the relevant Zambian cases on the law of evidence and avail them to me
with the necessary context. I thank Edwin for being equal to the task of research and without him
this publication would have taken a different route.

I thank another young scholar and practitioner, Joseph Chirwa for reviewing and approving the
format and contents of this publication.I extend my gratitude to my colleague, a legal walking
encyclopedia, Clement Andeleki to whom I bounce all my ideas and writings. I value his
opinions. I thank most profusely High Court Judge Kabaso Chanda (Ret.) now of the School of
Law, Zambian Open University for giving me feedback and directions in my writings, including
this one. Feedback is premium in Zambia and is rarely given. I thank Machipisha Muswalo for
the powerful Foreword.

Finally, I wish to thank Zambian Open University, particularly its Founder and first Vice
Chancellor Professor Dickson Mwansa for encouraging me to come back to Zambia from abroad
and to contribute to the educational enterprise in the law. After 40 years abroad the university
and the then Dean of the School of Law, Dr. Kalombo Mwansa along with the law lecturers
enabled my soft landing back on Zambian soil.

But this work is entirely my responsibility.

Dr. Munyonzwe Hamalengwa

Senior Lecturer and Acting Dean

School of Law, Zambian Open University

Lusaka

October 2018.
 vii

PREFACE

In their Preface to the first edition of their book, "The Law of Evidence in Zambia: Cases &
Materials" (1991), John Hatchard and Muna Ndulo, lament that their book's impetus was in the
disappointment of being continuously faced with an almost total lack of local teaching materials.
In the Law of Evidence, this has remained the only book in Zambia since the country obtained
independence in 1964.

I am animated by the same impetus, this time to update the Zambian materials where Hatchard
and Ndulo left off. Further, whereas Hatchard and Ndulo's book is more on compilation of cases
and materials, my contribution is more on legal commentary and analysis but without sacrificing
the inclusion of time-tested legal precedents on evidence, especially emphasizing Zambian
jurisprudence.

In the Foreword Machipisha Muswalo detects my intention in this book and reminds us that
established precedents no matter where they come from, contribute to the robust explication of
the law of evidence in Zambia and must be retained and expanded.

I look forward to receiving continuing feedback on the laws and their application in Zambia for
the advancement of legal scholarship and therefore betterment of Zambia's legal system.

Dr. Munyonzwe Hamalengwa

Lusaka

October 2018.
 viii

LIST OF CASES

Abel Banda v The People (1986) Z.R. 105 (S.C.).

Ackson Zimba v The People (1980) Z.R. 259 (S.C.).

Attorney-General of Northern Rhodesia v Lyampali and Liso (1963-1964) Z. AND N.R.L.R. 121
(C.A.).

Augustien v Challis (1847) 1 Ex 279.

Berkeley Peerage Case (1811) 4 Camp 401.
Bisaillon v Keable [1983] 2 S.C.R. 60.
Blake v The People (1973) Z.R. 157 (H.C.).
Blunt v Park Lane Hotel Ltd [1942] 2 KB 253.

Bowman v Taylor (1834) 2 A& E 278.

Brewster v Sewell (1820) 3 B &Ald 296.

British Steel Corporation v Granada Television Ltd [1981] AC 1096.

Callis v Gunn [1964] 1 QB 495, 501.

Chabala v The People (1976) Z.R. 14 (S.C.).

Chansa v The People (1975) Z.R. 136 (S.C.).

Chard v Chard [1956] P 259.

Chigowe v The People (1977) Z.R. 21.

Chilufya v The People (1975) Z.R. 138 (S.C.).
Chimbo and Others v The People (1982) Z.R. 20 (S.C.).
Chipchase v Chipchase [1939] P 391.

Chuba v The People (1976) Z.R. 272 (S.C.).

Church of Scientology v Johnson-Smith [1972] 23 QB.
Chwa Hum Htive v King-Emperor (1926) I.L.R. 11 Rang. 107.
Crispin Soondo v The People (1981) Z.R. 302 (S.C.).

D v National Society for the Prevention of Cruelty to Children [1978] AC 171.

 ix

Daniel Chizoka Mbandangoma and the Attorney-General (1977) Z.R. 334 (H.C.).

Director of Public Prosecutions v Kilborne [1973] AC 729.

Doe d’Hindley v Rickarby (1803) 5 Esp 4.

DPP v Boardman [1975] AC 421.

Duncan v Cammel, Laird & Co. Ltd [1942] AC 624.

Edward Sankalimba v the People (1981) Z.R. 258 (S.C.).

Edward Sinyama v The People (1993 - 1994) Z.R. 16 (S.C.).

Elias v Pasmore (1934) 2 K.B. 65.
Ewer v Ambrose (1825) 3 B & C 746.

Festa v R [2001] HCA 72.

Garton v Hunter [1969] 2 QB 37, 44.

Gastove Kapata v The People (1984) Z.R. 47 (S.C.).

Gilbert Chileya v The People (1981) Z.R. 33 (S.C.).

Goodright d. Faro v Hicks (1789) Bull NP 296.

Green Nikutisha and John Mwakishala v The People (1979) Z.R. 261 (S.C.).
H.C. Sitanga v The Attorney-General (1977) Z.R. 258 (H.C.).

Hamfuti v The People (1972) Z.R. 240 (H.C.).

Holmes Limited v Buildwell Construction Companylimited (1973) Z.R. 97 (H.C.).

Hubert Sankombe v The People (1977) Z.R. 127 (S.C.).

Hudson v Michigan (2006) 537 U.S. 586 S.Ct. 2159.

Hurst v Evans [1917] 1 KB 352.

Ibrahim v R [1914] AC 599 at 609.

Ivor Ndakala v The People (1980) Z.R. 180 (H.C.).
Ivor Ndakala v The People (1980) Z.R. 180 (H.C.).
 x

Jeffrey Godfrey Munalula v The People (1982) Z.R. 58 (S.C.).

Jones v Owen (1870) 34 J.P. 759.

Joseph Knox Simwanza v The People (1985) Z.R. 15 (S.C.).

Kabwe Transport Limited v Press Transport (1975) Limited (1984) Z.R. 43.
Kajala v Noble (1982) 75 Cr App R 149.
Kaniki v Jairus (1967) Z.R. 71 (H.C.).
King v R (1968) 2 All E.R. 610.
Liswaniso v the People (1976) Z.R. 277 (S.C.).
Lufeyo Matatiyo Kalala v The Attorney-General (1977) Z.R. 310 (S.C.).
Lumangwe Wakilaba v The People (1979) Z.R. 74 (S.C.).
Lumus Agricultural Services Co. Ltd and Another v Gwembe Valley Development Co. Ltd (In
Receivership) (1997) ZR 1.

Lungu v The People (1968) Z.R. 24 (H.C.).

Lungu v The People (1968) Z.R. 24 (H.C.).
Lupupa v The People (1977) Z.R. 38 (S.C.).
Lusaka West Development Company Limited, B.S.K. Chiti (Receiver), Zambia State Insurance
Corporation v Turnkey Properties Limited S.C.Z. Judgment No. 1 of 1990.

Machipisha Kombe v The People S.C.Z Judgment No. 27 of 2009.

Machobane v The People (1972) Z.R. 101 (C.A.).

Makin v Attorney-Ggeneral for New South Wales [1894] AC 57.

Malimawa v the People (1968) Z.R. 19 (H.C.).

Mares v Beyfus (1890) 25 QB D. 494.
Maseka v The People (1972) ZR 9.

Melody Chibuye v The People (1970) Z.R. 28 (H.C.).

Miller v Minister of Pensions [1947] 2 All ER.

Mood Music Publishing v De Wolfe Ltd [1976] Ch 119.

 xi

Mumba v The People (1984) ZR 38 (HC).

Murono v the People (2004) Z.R. 207 (S.C.).

Musakanya Valentine Shula and Edward Jack Shamwana v Attorney-General (1981) Z.R. 221
(H.C.).

Mutambo and 5 Others v the People (1965) Z.R. 15.

Mwape v The People (1976) Z.R. 160 (S.C.).

Nalishwa v The People (1972) Z.R. 26.

Naweji v The People (1981) SCZ(Unreported).

Nsofu v The People (1973) Z.R. 287 (S.C.).

OTK Limited v Amanita Zambiana Limited, Diego Gan-Maria Casilli, Amanita Premium Oils
Limited, Amanita Milling Limited (2005)/HPC/0199.

Owner v Bee Hive Spinning Co. Ltd [1914] 1 KB 105.

Patrick Sakala v The People (1980) Z.R. 205 (S.C.).
People v Austin Chisangu Liato [2015] ZMSC 26.

People v Swillah (1976) Z.R. 338 (H.C.).

Pickard v Sears (1837) 6 Ad & El 469.

Prince v Samo (1838) 7 Ad & El 627.

R v Ball [1911] AC 47.

R v Barnes [1995] 2 Cr App R 491.

R v Bellamy (1986) 82 Cr App R 222.

R v Butterwasser [1948] KB 4.

R v Cheng [1976] Crim.L.R. 379.

R v Chiarantano [1990] O.J. No. 2603 (C.A.).

R v Christie [1914] AC 545.
R v Cox and Railton (1884) 14 QBD 153.
 xii

R v Elworthy (1867) LR 1 CCR 103.

R v Exall [1866] 4 F & F 922, 929.

R v F.C (A Juvenile) H.C. N. R 1941.

R v Francis (1874) LR 2 CCR 278.

R v Hardy (1794) 24 St Tr 199.

R v Hepworth [1955] 2 QB 600.

R v Keane [1994] 2 All ER 479 .

R v Leipert (1997) 122 S.C.C.
R v Lovegrove (1921) 26 Cox CC 683.

R v Mendy (1976) 64 Cr App R 4.

R v Onufrejczyk [1955] 2 QB 388.

R v Osman 15 Cox, CC 1.
R v Podola [1959] 3 All E.R. 418.

R v Priestly (1965) 51 Cr App R 1.

R v Redgrave (1981) 74 Cr App R 10.

R v Roberts [1942] 28 Cr App R.

R v Rowton (1865) Le&Ca 520.

R v Ryan [1990] Crim LR 50.

R v Silverlock [1894] 2 QB 766.
R v Smith (1915) 11 Cr App R, 229.

R v Spurge [1961] 2 QB 205.

R v Summers [1952] 36 CrAppR 14.

R v Vye (1993) 97 Cr App R 134.

R v Warickshall (1783) 1 Leach 263.

 xiii

R v Whitehead [1929] 1 KB 99.

Roviaro v United States (1959) U.S. LEXIS 1125.

Rumping v DPP [1964] AC 814, HL.

Saidi Banda v the People Selected Judgment No.30 of 2015.

Sattin v Union Bank (1978) 122 SJ 367.

Shamwana and 7 Others v The People (1985) Z.R. 41 (S.C.).

Silverthorne Lumber Co. v United States (1920) 251 U.S. 385.

Simon Miyoba v The People (1977) Z.R. 218 (S.C.).

Sipalo Chibozu and Chibozu v The People (1981) Z.R. 28 (S.C.).

Sitali and Others v Mopani Copper Mines PLC (2004) Z.R. 176 (S.C).
Solicitor-General of Canada v Royal Commission of Inquiry (Ontario Health Records) [1981] 2
S.C.R. 494.
Subramaniam v Public Prosecutor (1956) 1 W.L.R. 965.
The People v Clifford Dimba Kanene HPS/24/2014.
The People v John Nguni (1977) Z.R. 376 (H.C.).
The People v Keith Akekelwa Mukata and Charmaine Musonda HP/180/2017.
The People v Mushaikwa (1973) Z.R. 161 (H.C.).

The People v Paul Pandala Banda HP/64/2016.

Thompson v R [1918] AC 221.

Toko v The People (1975) Z.R. 196 (S.C.).

Toohey v Commissioner of Police of the Metropolis Toohey [1965] AC 595.

United States v Harrison (2005) U.S. Dist. LEXIS 6195.

Walker v Wilsher (1889) 23 QBD 335.

Waugh v British Railways Board [1980] AC 521, HL.

Weeks v United States (1914) 232 I.S. 383.

Woolmington v Director of Public Prosecutions [1935] AC 462.
 xiv

Zulu v The People (1973) Z.R. 326 (S.C.).

LIST OF STATUTES

Affiliation and Maintenance of Children Act, Chapter 64 of the Laws of Zambia.

Anti-Corruption Act No. 3 of 2012.

Authentication of Documents Act, Chapter 75 of the Laws of Zambia.

British Acts Extension Act, Chapter 10 of the Laws of Zambia.

Constitution of Zambia Act, Chapter 1 of the Laws of Zambia.

Contempt of Act 1981 [English].

Criminal Evidence Act 1898 [English].

Criminal Procedure Act 1865 [English].

Criminal Procedure Code Act, Chapter 88 of the Laws of Zambia.

Diplomatic and Privileges Act, Chapter 20 of the Laws of Zambia.

Electronic Communications and Transactions Act No. 21 of 2009.

English Law (Extent of Application) Act, Chapter 11 of the Laws of Zambia.

Evidence (Bankers' Books) Act, Chapter 44 of the Laws of Zambia.

Evidence Act 1851 [English].

Evidence Act, Chapter 43 of the Laws of Zambia.

Forfeiture of Proceeds of Crime Act No. 19 of 2010.

Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia.

Juveniles Act, Chapter 53 of the Laws of Zambia.

Legitimacy Act, Chapter 52 of the Laws of Zambia.

Marriage Act, Chapter 50 of the laws of Zambia.

Matrimonial Causes Act, Act No. 20 of 2007.

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Narcotic Drugs And Psychotropic Substances Act, Chapter 96 of the Laws of Zambia.

Penal Code Act, Chapter 87 of the Laws of Zambia.

STATUTORY INSTRUMENTS

High Court Rules, Chapter 27 of the Laws of Zambia.

Statutory Instrument No. 35 of 2016.

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Unit 1: Preliminaries

Introduction

This Unit provides an introduction to the Law of Evidence in Zambia. Evidence has been
defined as something (including testimony, documents and tangible objects) that tends to
prove or disprove the existence of an alleged fact.1 The Law of Evidence is the body of law
regulating the admissibility of what is offered as proof into the record of a legal proceeding.2

Objectives

At the end of this Unit, the student should be able to demonstrate understanding on:

 The sources of the Law of Evidence in Zambia.

 This Unit further aims at acquainting students with knowledge on the concepts of
admissibility, relevance and weight placed on particular evidence.

 Lastly, the student should be able to demonstrate understanding on direct and

circumstantial evidence and judicial discretion.

Topic 1 - Sources of the Law of Evidence in Zambia

By ―sources of the Law of Evidence‖ it is meant where one may look for solutions when
faced with a problem arising from the Law of Evidence. Listed in the order of importance, the
sources of the Law of Evidence in Zambia are: Legislation, common law, judicial precedents,
customary law and scholarly works. Each of the above sources is considered in more detail
below:

Legislation

Legislation refers to that law passed by Parliament including English statutes (Acts)
applicable to Zambia. Under this head delegated legislation such as Statutory Instruments are
also included. Under the umbrella of legislation a further ranking of laws may be drawn as
follows:

1
Law, J. (Ed.). (2009). Oxford Dictionary of Law. (7th Ed.). London: Oxford University Press. p213.
2
Garner, B. (2009). Black’s Law Dictionary. (9th Ed.). New York: Thompson West. p635.
 2

The Constitution

At the apex of legislation as a source of the Law of Evidence in Zambia is the Constitution.
There are specific constitutional provisions that have a significant bearing on the Law of
Evidence in Zambia. For example Article 18 (2) (e) provides that:

"18. (2) Every person who is charged with a criminal offence-

(e) shall be afforded facilities to examine in person or by his legal representative the
witnesses called by the prosecution before the court, and to obtain the attendance and carry
out the examination of witnesses to testify on his behalf before the court on the same
conditions as those applying to witnesses called by the prosecution."3

This is a constitutional provision that seeks to ensure the due process of law in a trial.

Ordinary Acts of Parliament

There are a number of Acts of Parliament that may provide solutions to a problem arising
from the Law of Evidence. A few of such Acts are considered briefly below:

The Criminal Procedure Code Act4

This Act makes provision for a number of procedural rules in criminal matters. Part IX of the
Act deals with the procedure in trials before the High Court. Section 285 of the Act provides
for Opening of the case for the prosecution. Section 286 of the Act makes provision for
Additional witnesses for the prosecution. Section 287 provides for Cross-examination of
witnesses for the prosecution. Section 290 guides on the Statement or evidence of the accused
and Section 291 provides for the Close of case for the prosecution. Similar provisions are also
made for the Defence.

Evidence Act5

Section 3 of the Act provides for the admissibility of documentary evidence as to facts in
issue. Section 5 of the Act makes provision for the weight to be attached to evidence.

Evidence (Bankers' Books) Act6

This is an Act which governs the law of evidence with respect to bankers' books.

3
Chapter 1 of the Laws of Zambia.
4
Chapter 88 of the Laws of Zambia.
5
Chapter 43 of the Laws of Zambia.
6
Chapter 44 of the Laws of Zambia.
 3

Section 4 (2) of the Act for example requires a copy of an entry in a banker's book not to be
received in evidence under the Act unless it be first proved that the book was at the time of
the making of the entry one of the ordinary books of the bank, and that the entry was made in
the usual and ordinary course of business, and that the book is in the custody or control of the
bank.

Juveniles Act7

This Act requires that evidence given on behalf of the prosecution by a child aged 14 or
below must be supported in a material particular by some other independent evidence.

Electronic Communications and Transactions Act8

Section 8 of the Act makes provision for the admissibility and evidential weight of data
messages. Section 2 of the Act defines ―data message‖ to mean ―…data generated, sent,
received or stored by electronic means and includes-
(a) a voice, where the voice is used in an automated transaction; and
(b) a stored record.‖

English Statutes

By virtue of Section 2 of the English Law (Extent of Application) Act,9 (a) the common
law; (b) the doctrines of equity; (c) the statutes which were in force in England on
17thAugust, 1911, and; (d) any statutes of a later date than that mentioned in paragraph (c) in
force in England, now applied to the Republic, or which shall apply to the Republic by an
Act of Parliament, or otherwise; shall be in force in the Republic.

Further, the British Acts Extension Act10 also makes provision for application of certain
British Acts in Zambia.

However, it is important to note that English law (common law and equity inclusive) only
apply to Zambia in the absence of local authority. This position finds support in a number of
cases. Among such cases is Kabwe Transport Limited v Press Transport (1975) Limited11 in
which an attempt to rely on the Civil Evidence Act of England was rejected by the Court as

7
Chapter 53 of the Laws of Zambia.
8
Act No. 21 of 2009.
9
Chapter 11 of the Laws of Zambia.
10
Chapter 10 of the Laws of Zambia.
11
(1984) Z.R. 43.
 4

we have our own Evidence Act and it is irrelevant that our Act is not as comprehensive as the
English one.

Case law

Judge made law is also a source of the law of evidence in Zambia. As Hart observes: ―a
supreme tribunal has the last word in saying what the law is and, when it has said it, the
statement that the court was ‗wrong‘ has no consequences within the system: no one‘s rights
or duties are thereby altered.‖12

Common law

The expression ―common law‖ carries several distinct meanings. As used here common law
refers to a general system of law deriving exclusively from court decisions.

Customary law

Customary law refers to the indigenous laws that regulated various ethnic groups in pre-
colonial Zambia. However, customary law is only of legal effect if it is not inconsistent with
any written law, equity or good conscience.13 This position finds further support in the case
of Kaniki v Jairus.14

Scholarly works

Leading scholarly works on the Law of Evidence are also an important source of the Law of
Evidence in Zambia. Among such leading works are: Hatchard and Ndulo‘s ―the Law of
Evidence in Zambia: Cases and Materials‖; Cross on Evidence and Murphy on Evidence
among others. These works have been consulted by Zambian courts from time to time.

Topic 2 - Admissibility, Relevance and Weight

Admissibility

Admissibility of evidence refers to the principles determining whether or not particular items
of evidence may be received by the court. The central principle of admissibility is relevance.

12
Hart, H. L. A. (1994). The Concept of Law. (2nd Ed.). Oxford: Oxford University Press. p141.
13
Section 16 Subordinate Courts Act, Chapter 28 of the Laws of Zambia.
14
(1967) Z.R. 71 (H.C.).
 5

All irrelevant evidence is inadmissible, but evidence that is legally relevant may also be
inadmissible if it falls within the scope of one of the exclusionary rules of evidence.15

Relevance

Relevance is the relationship between two facts that renders one probable from the existence
of the other, either taken by itself or in connection with other facts. Although most relevant
facts are admissible in evidence, relevance is not the same as admissibility, since even
relevant evidence must be excluded if it falls within one of the exclusionary rules. If no
exclusionary rule is involved, all facts that have logical relevance to a fact in issue may be
proved even though they are not in issue themselves.16

Weight

Weight of the evidence refers to the persuasiveness of some evidence in comparison with
other evidence.17 For example, an accused may give either sworn evidence or unsworn
evidence. More weight is placed on sworn evidence than on that which is unsworn.

The above concepts were illuminated in the leading case of Director of Public Prosecutions v
Kilborne.18

Topic 3 - Direct and Circumstantial Evidence

Direct Evidence

Direct evidence is the evidence of a witness that they perceived a fact in issue with one of
their five senses or that they were in a particular physical or mental state.19 An example of
direct evidence would be a witness in a murder trial testifying that they saw the accused
killing the victim.

Circumstantial Evidence

Circumstantial evidence also known as indirect evidence has been defined as evidence from
which a Judge (Trier) may infer the existence of a fact in issue but which does not prove the
existence of the fact directly.20 Similarly, in Festa v R21 it was asserted that: ―circumstantial

15
Supra note 1 p17.
16
Ibid., p465.
17
Supra note 2 p1731.
18
[1973] AC 729.
19
Supra note 1 p170.
20
Tapper, C. (2007). Cross and Tapper on Evidence. (11th Ed.). (Oxford: Oxford University Press. p31.
21
[2001] HCA 72.
 6

evidence may be described as evidence of facts subsidiary to, or connected with the main fact
to be established from which the conclusion of the guilt flows as a natural inference‖. A
typical example is a witness at a murder trial testifies that he saw the accused carrying a
bloodstained knife at the door of the house in which the deceased was found mortally
wounded. The prosecutor invites the Trier, first, to assume that the witness is speaking the
truth, and second, to infer that the accused inflicted the mortal wound with the knife.22

In R v Exall23 it was that: ―it has been said that circumstantial evidence is to be considered a
chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any link
break, the chain would fall. It is more like the case of a rope comprised of several cords. One
strand of the cord might be insufficient to sustain the weight, but three stranded together may
be quiet of sufficient strength. Thus it may in circumstantial evidence – there may be a
combination of circumstances, no one of which would raise a reasonable conviction or more
than a mere suspicion; but the three taken together may create a conclusion of guilt with as
certainty as human affairs can require or admit of‖.

Where circumstantial evidence is the evidence tendered to prove the commission of the
offence intent is proved by the acts committed for example from the evidence of planning and
preparations made; and from evidence of avoidance of detection, that is, destruction of
evidence or flight from the scene of crime. Circumstantial evidence requires particular
Attention in order to make correct inferences.24

A court can convict an accused person purely based on circumstantial evidence. This finds
support in the case of R v Onufrejczyk25 in which on a charge of murder, it was held that: ―At
the trial of a person charged with murder, the fact of death is provable by circumstantial
evidence, notwithstanding that neither the body nor any trace of the body has been found and
that the accused has made no confession of any participation in a crime.‖

For a court to convict an accused person purely based on circumstantial evidence, there is a
requirement that the inference of guilt drawn from the circumstantial evidence is the only
reasonable inference to be drawn.

22
Supra note 20 p p31-32.
23
[1866] 4 F & F 922, 929.
24
Supra note 20 p32.
25
[1955] 2 QB 388.
 7

The only reasonable inference possible

This position was considered in Naweji v The People26 Silungwe CJ asserted that: ―The test…
is not whether there is strong circumstantial evidence but whether the inference of guilt is the
only one reasonably possible‖. The appellant was convicted of the murder of a woman in the
course of a sexual assault; the injuries found on the body suggested that she had struggled
with her assailant. The appellant was traced and when arrested was found to have scratches
on the neck and chest. He explained in evidence that the scratches were caused by flying
pieces of iron at his place of work, an explanation which was not rebutted. The trial court
without any evidence to support the finding said that the appellant had protective clothing at
work and therefore that the flying particles of iron could not penetrate such clothing; the trial
court consequently inferred that the scratches on the appellant were sustained during the
struggle with the deceased.

Held:
(i) It is a weakness peculiar to circumstantial evidence that by its very nature it is not direct
proof of a matter at issue but rather is proof of facts not in issue but relevant to the fact in
issue and from which an inference of the fact in issue may be drawn.
(ii) It is incumbent on a trial judge that he should guard against drawing; wrong inferences
from the circumstantial evidence at his disposal before he can feel safe to convict. The judge
must be satisfied that the circumstantial evidence has taken the case out of the realm of
conjecture so that it attains such a degree of cogency which can permit only an inference of
guilt.
(iii) The appellant‘s explanation was a logical one and was not rebutted, and it was therefore
an unwarranted inference that the scratches on the appellant's body were caused in the course
of committing the offence at issue.

Further, in Patrick Sakala v The People27 the appellant was convicted of murder of Rute‘s
four-year-old son. The facts were that after travelling with Rute for two hours he proposed
making love to her and upon her refusal he assaulted severely and left her unconscious. Eight
hours later she regained her consciousness to find her suitcase gone and her son dead. There
was no dispute as to the accused‘s identity and that he assaulted Rute. On appeal the

26
(1981) SCZ(Unreported).
27
(1980) ZR 205.
 8

appellant argued that there was no direct evidence connecting him to the death of the boy.
The question was whether the boy could have met his death by unnatural causes. The
Supreme Court upheld a conviction on the basis of circumstantial evidence and held that
where there is no eye-witness to the killing, circumstantial evidence must once again be
called in aid. The court quoted with approval that the learned Commissioner in Patrick
Sakala v The People28, had directed himself properly on the issue as follows:

―I am bound to assume that natural causes have not been ruled out unless there are
compelling facts to the contrary when it would be totally unacceptable so to assume. In fact, I
find such compelling facts to exist. The child was no doubt alive before the mother lost
consciousness. It was dead when the mother found it at about 16:00 hours when she
recovered consciousness. There were bruises on its neck and suboccipal haematoma. There
was a belt wound tightly around its neck. It would be madness to talk about natural causes in
such circumstances: In the event, even though the medical evidence as to cause of death is
uncertain, I am certain, not to the cause of death in medical language, but of the type of death
the child met, namely that it was unnatural and certainly not at his own hands.‖ On the issue
of the possibility of the child having been killed by the third party the Supreme Court ruled
this out on the facts that the police recovered a dress identified by Rute as hers which the
appellant gave to a member of the public and which dress had been in the suitcase stolen by
the appellant as found by the trial court. The Court concluded that: ―...the circumstantial
evidence implicating the appellant with the crime charged is overwhelming. He had the
opportunity and the motive. It seems probable to us that baring beaten up the child's mother
and left her for dead the appellant must have decided to take the child's life in an effort to
eliminate the chances of his being later identified by the child.‖

Furthermore, in the case of Chabala v The People29, it was asserted that: ―Involved in this
statement of the law are matters concerning the general principles applicable to inferences in
the criminal law. The inference 'may' be drawn; not must. Such a case must be treated as any
other case in which guilt is found by inference. The inference must be the only reasonable
inference. And if a person is in possession of property recently stolen and gives no
explanation the proper inference from all the circumstances of the case may be that he was
the thief, or broke in to steal and stole, or was a receiver, or even, despite no explanation,
cannot be said beyond reasonable doubt to be guilty. And if explanation is given, because

28
Ibid., at page 208.
29
(1976) Z.R. 14 (S.C.).
 9

guilt is a matter of inference, there cannot be conviction if the explanation might reasonable
be true, for then guilt is not the only reasonable inference. It is not correct to say, as was said
in this case, that the accused must give a satisfactory explanation. Absence of an explanation
which can be regarded as reasonably possible is one of the facts on which the inference of
guilt may be based. Mere possession of property recently stolen is not enough, for there may
always be a reasonable explanation of such possession, and, until it appears that one is not
given, the extra fact to dispose of that possibility is not present to found a finding of guilt by
inference.‖

The requirement for the inference to be the only reasonable one was also considered in the
case of Maseka v The People30in which it was stated that: ―This passage requires no
elaboration. I would only emphasize one point which is all too frequently not appreciated;
even in the absence of any explanation, either at an earlier stage or during the trial, the
inference of guilt cannot be drawn unless it is the only reasonable inference to be drawn from
all the circumstances.‖

Mostly recently, the Law on circumstantial evidence was restated by the Supreme Court in
the case of Saidi Banda v the People31 in which the appellant was tried and convicted of one
count of murder by the Lusaka High Court, contrary to Section 200 of the Penal Code Act,
Chapter 87 of the Laws of Zambia.

The material evidence before the trial court, as given by eight prosecution witnesses, was
wholly circumstantial.

The appellant raised the following two grounds of appeal:

1. The learned trial court erred both in law and in fact when it convicted on circumstantial
evidence which did not raise the inference of guilt as the only inference.

2. The learned trial judge in the lower court erred in law and in fact when it refused the
explanation of the appellant which was reasonably possible.

The Supreme Court observed that where the prosecution's case depends wholly or in part on
circumstantial evidence, the court is, in effect, being called upon to reason in a staged
approach.

30
(1972) ZR 9.
31
Selected Judgment No.30 of 2015.
 10

The court must first find that the prosecution evidence has established certain basic facts.
Those facts do not have to be proved beyond reasonable doubt. Taken by themselves, those
facts cannot, therefore, prove the guilt of the accused person. The court should then infer or
conclude from a combination of those established facts that a further fact or facts exist. The
court must then be satisfied that, those further facts implicate the accused in a manner that
points to nothing else but his guilt.

Drawing conclusions from one set of established facts to find that another fact or facts are
proved, clearly involves a logical and rational process of reasoning. It is not a matter of
casting any onus on the accused, but a conclusion of guilt a court is entitled to draw from the
weight of circumstantial evidence adduced before it.

The Court was perfectly satisfied that the trial court properly dealt with the issues arising and
applied the relevant considerations relating to acceptance of circumstantial evidence. The
appeal was dismissed.

Topic 4 - Judicial Discretion

Judicial discretion entails the freedom of a judicial officer or judge to decide between two
alternatives. Judges have the common law discretion to exclude relevant evidence if
admitting the evidence will be adverse to the fairness of the proceedings. For example, a
judge should exercise his or her discretion to exclude admissible evidence when it appears
clearly that the evidence has an unfair prejudicial tendency against the accused out of
proportion to its probative value.32

Study Questions

1. List and briefly explain the sources of the Law of Evidence in Zambia.

2. How are the concepts of admissibility, relevance and weight distinguishable?

3. What are the main considerations a court should address its mind to when wholly or in part
relying on circumstantial evidence?

4. What is judicial discretion and in what two examples can it arise in the Law of Evidence?

32
Mutambo and 5 Others v the People (1965) Z.R. 15.
 11

Unit 2: Burden and Standard of Proof

Introduction

The concepts of burden and Standard of Proof are central to the Law of Evidence. The burden
of proof refers to the onus that lies on the party alleging a case against another to prove such
case. The alleging party carries what is called the legal burden of proof whereas the party
against whom an allegation is made acquires an evidential burden if the other party
discharges their evidential burden. The standard of proof is the degree or extent to which the
burden of proof is required to be discharged. The usual distinction is that between the civil
and the criminal standards of proof. The standard of proof can either be on a balance of
probabilities or beyond reasonable doubt. A hybrid standard of proof is also considered.

Objectives

At the end of this Unit, the student should be able to demonstrate understanding on:

 The general position on who bears the burden of proof in both civil and criminal
matters.

 The student should also know the exceptions to the general position on who bears the
burden of proof especially in criminal cases.

 Lastly, the student must demonstrate understanding on the degree to which the legal
and the evidential burden of proof in both civil and criminal cases are to be
discharged.

Topic 1 - Burden of Proof

There are two burdens of proof, the legal burden (to prove the elements of the case or defence
to the appropriate standard) and the evidential burden (to adduce sufficient evidence to
justify, though not require, a favourable decision).1

1.1 Legal Burden

1.1.2 Civil Cases

At common law in civil cases, the legal burden of proof rests on the party who, on the proper
interpretation of the law, asserts the affirmative proposition (usually, but not always, the

1
Glover, R. (Ed.). (2013). Murphy on Evidence. (13th Ed.). Oxford: Oxford University Press. p71.
 12

claimant). The defendant bears the burden of proving a defence going beyond a denial of the
claimant‘s allegations (an affirmative defence).2

1.1.3 Criminal Cases

At common law, in criminal cases, the prosecution always bears the burden of proving each
element of the offence charged and must disprove defences raised by the defendant. The
defendant does not have to prove his or her innocence.3 This is an important principle which
has even found itself enshrined in the Constitution. Article 18(2) prescribes that:

―Every person who is charged with a criminal offence-

(a) shall be presumed to be innocent until he is proved or has pleaded guilty‖4

In Woolmington v Director of Public Prosecutions5 the accused‘s estranged wife refused his
plea for reconciliation. He went to visit his wife at her mother‘s carrying a loaded shotgun
whose barrels he had sawn off. He shot her dead. He claimed that he had taken the gun to
convince his wife that he would commit suicide if she did not return to him, but that, when
she had turned him down, as he was taking out the gun from under his coat it went off
accidentally and shot her dead. The trial judge directed the jury as follows:

Once it is shown to a jury that somebody has died through the act of another, that is presumed
to be murder, unless the person who has been guilty of the act which causes the death can
satisfy a jury that what happened was something less, something which might be alleviated,
something which might be reduced to a charge of manslaughter, or was something which was
accidental, or was something which could be justified. The accused was convicted and his
appeal was dismissed by the Court of Criminal Appeal. He appealed to the House of Lords
and they held that:
―Throughout the web of the English criminal law one golden thread is always to be
seen — that it is the duty of the prosecution to prove the prisoner‘s guilt... the principle that
the prosecution must prove the guilt of the prisoner is part of the common law of England and
no attempt to whittle it down can be entertained.‖

2
Ibid., p72.
3
Ibid., p72.
4
Chapter 1 of the Laws of Zambia.
5
[1935] AC 462.
 13

In criminal matters, the burden of proof generally takes two forms. These are: legal burden of
proof and evidential burden of proof.

The legal burden of proof also known as the persuasive burden of proof lies on the
prosecution. In Murono v the People6 it was held (inter alia) that in criminal cases, the rule is
that the legal burden of proving every element of the offence charged, and consequently the
guilt of the accused, lies from beginning to end, on the prosecution.

Exceptions to the general position of the prosecution having to discharge the evidential
burden of proof

The position that the accused is under no evidential burden to prove his innocence is a
general position with important exceptions. Where the accused pleads certain defences the
evidential burden of proof (but not the legal burden) may shift on him upon which he is to
discharge it on a balance of probabilities. Examples include the following:

Defence of insanity

Where the accused leads the defence of insanity for example, the onus lies on him to
discharge it on a balance of probabilities that he was insane at the time of the commission of
the offence because everyone is presumed sane unless the contrary is proved.7 In R v Podola8
it was held that where the accused has raised insanity as a defence he bears the burden of
proving it on a balance of probabilities.

Defence of automatism

Similarly to the defence of insanity, in respect of the defence of automatism, the accused
must show to the court that he was acting automatically when his vehicle collided with
another vehicle. He has to adduce and lead evidence to prove his claim. If he does not, the
prosecution does not have to lead evidence that the accused‘s plea ought not to succeed.9

Express provision in law

Further, Parliament may expressly or by implication make exceptions to the general rule on
the burden of proof. The Constitution recognises this. Article 18 (12) (a) provides that:

6
(2004) Z.R. 207 (S.C.).
7
Kulusika, S. (2005). Texts, cases and materials on criminal law in Zambia, Lusaka: UNZA Press. p. 36.
8
[1959] 3 All E.R. 418.
9
Supra note 7 p37.
 14

―Nothing contained in or done under the authority of any law shall be held to be inconsistent
with or in contravention of-

(a) paragraph (a) of clause (2) to the extent that it is shown that the law in question imposes
upon any person charged with a criminal offence the burden of proving particular facts‖ 10.
Thus, section 319 of the Penal Code11 enacts that any person suspected of having or
conveying stolen property shall give an account to the satisfaction of such court of how he
came by the same.

Similarly, section 85 (1) of the Penal Code12 provides that: ―Any person who, without lawful
authority or excuse, the proof whereof shall lie upon him, has in his possession or in or upon
any premises occupied by him any offensive weapon or any offensive material is guilty of an
offence...‖

In Attorney-General of Northern Rhodesia v Lyampali and Liso13 the respondents left the car
they were driving in and proceeded to assault political opponents who were gathered at a
meeting. They were charged with being in possession of offensive weapons. The offence
required that: ―Any person who without lawful authority or reasonable excuse, the proof
whereof shall lie upon him, has with him in any public place any offensive weapon shall be
guilty of a misdemeanour‖. It was held that: in order to prove the offence charged against the
respondents it was for the Crown [prosecution] to establish that each of them had with him in
a public place an offensive weapon. When this burden had been discharged, the respondents
would be guilty of the offence unless they were able to satisfy the court, on a balance of
probabilities, that they had either a lawful authority or a reasonable excuse for having the
weapons with them.

An example of implied statutory exception was illustrated in R v Spurge14 the accused

claimed the defence of mechanical defect to a charge of dangerous driving. His appeal
against conviction was unsuccessful because he was aware of the defect.

10
Supra note 4.
11
Chapter 87 of the Laws of Zambia.
12
Ibid.
13
(1963-1964) Z. AND N.R.L.R. 121 (C.A.).
14
[1961] 2 QB 205.
 15

1.2 Evidential Burden

The evidential burden (burden of adducing evidence or burden of going forward), is the duty
of showing that there is sufficient evidence to raise an issue fit for the consideration of the
trier of fact as to the existence or non-existence of a fact in issue.15

Unless the claimant has presented at least some evidence in support of each essential element
of his claim the defendant will be entitled to make a submission of no case to answer, which
if successful, entitles the defendant to judgment without being called on to present a case.
The case is fatally defective in law. The defendant could safely refuse to call any evidence,
and if the judge found for the claimant, the judgment would be set aside on appeal. The test
on a submission of no case to answer is whether the claimant has established a prima facie
case as to each essential element of the claim. A prima facie case is established when there is
enough evidence to entitle, though not compel the tribunal of fact to find in favour of the
claimant, if there were to be no further evidence given.16

The discharge of the evidential burden of proof means, then, that the claimant has adduced
enough evidence of evidential facts to establish a prima facie case as to the facts in issue, and
thereby defeat a submission of no case to answer.17

The moment when the claimant establishes his prima facie case, he has discharged his
evidential burden of proof. At this point, the defendant (who bears no legal burden of proof)
nonetheless acquires an evidential burden. This is because, if he does not now adduce some
evidence in opposition to the claimant‘s case, he runs the clear risk that the claimant‘s
uncontradicted case will succeed. It should be noted that, as a matter of law, the defendant is
fully entitled to refuse to adduce evidence; because the claimant has the entire legal burden of
proof, the judge still has the duty of considering the claimant‘s case as a whole in the light of
the standard of proof.18

Thus, in Doe d’Hindley v Rickarby19 the claimant in a claim for unauthorized sub-letting of
the premises established a prima facie case by showing that a person other than the tenant
was in possession, ostensibly in the position of a sub-tenant, an evidential burden lay on the
defendant to show that the occupier was there in some other capacity.

15
Law, J. (Ed.). (2009). Oxford Dictionary of Law. (7thEd.). London: Oxford University Press. p71.
16
Supra note 1 p74.
17
Ibid.
18
Ibid., p75.
19
(1803) 5 Esp 4.
 16

Topic 2 - Standard of Proof

Corollary to burden of proof is the standard of proof. The standard of proof refers to the
degree of proof required for any fact in issue in litigation, which is established by assessing
the evidence relevant to it.20

1.1 Civil Cases

In civil proceedings the standard of proof is proof on the balance of probabilities.21 In Miller
v Minister of Pensions22 it was stated by Denning J, that: ―The degree of cogency... required
to discharge a burden in a civil case... is well settled. It must carry a reasonable degree of
probability, but not so high as is required in a criminal case. If the evidence is such that the
tribunal can say: ―We think it more probable than not,‖ the burden is discharged, but, if the
probabilities are equal, it is not.‖

1.2 Criminal Cases

In criminal proceedings the standard of proof is proof beyond reasonable doubt. 23 In Miller v
Minister of Pensions24 regarding the expression of ―beyond reasonable doubt‖ Lord Denning
asserted as follows:

―The... degree of cogency... required in a criminal case before an accused person is

found guilty... it well settled. It need not reach certainty, but it must carry a high degree of
probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of
doubt. The law would fail to protect the community if it admitted fanciful probabilities to
deflect the course of justice. If the evidence is so strong against a man as to leave only a
remote possibility in his favour which can be dismissed with the sentence of ‗of course it is
possible, but not in the least probable,‘ the case is proved but nothing short of that will
suffice.‖

Further, the other expression suggested to describe the standard of proof in criminal
proceedings is whether the prosecution have satisfied the Trier so that the Trier feels sure of
the accused‘s guilt. This formula was introduced in R v Summers25 to address challenges that
were being felt about the reasonable doubt formula. Lord Goddard even went as far as stating

20
Supra note 15 p. 524.
21
Tapper, C. (2007). Cross and Tapper on Evidence. (11th Ed.). Oxford: Oxford University Press. p. 132.
22
[1947] 2 All ER.
23
Supra note 15 p. 524.
24
Supra note 22.
25
[1952] 36 CrAppR 14.
 17

that he hoped the expression of ―reasonable doubt‖ would not be used in the future. He was
however later to recant that view in R v Hepworth26 when the appeal was allowed on the
ground that the Learned trial Judge‘s direction that the jury had to be ―satisfied‖ of the
accused‘s guilt was insufficient to indicate the standard of proof required to secure a
conviction. Thus, proof beyond reasonable doubt still seems to represent the proper standard
of proof in criminal proceedings.27

1.3 A hybrid standard of proof

There would seem to be a third standard of proof which is higher than the civil one but not as
high as the criminal one. There are several areas in which such a hybrid standard of proof is
required. Examples include: election petitions,28 alleging fraud in civil matter,29 and
disciplinary proceedings by a professional body.30

Study Questions

1.Osamva is appearing before the High Court charged with an offence of aggravated robbery.
All the available evidence for the prosecution points to his guilt. The Court places on him a
legal burden to prove his innocence. Is this correct? If not, what is the correct position?

2. Distinguish between legal burden of proof and evidential burden.

3. Does the legal burden of proof ever shift to the defendant?

4. With reference to case law, what is standard of proof and how many forms exist?

26
[1955] 2 QB 600.
27
Supra note 21 p. 132.
28
Mabenga v Wina and Others (SCZ Judgment No. 15 of 2003).
29
Sithole v State Lotteries Board (1975) Z.R.106.
30
Campbell v Hamlet (Trinidad and Tobago) [2005] UKPC 19.
 18

Unit 3: Presumptions
Introduction

A presumption is a rule of law which provides that on proof of fact A (the primary fact) fact
B (the presumed fact) shall also be taken to be proved unless the presumption is rebutted.1The
main types of presumptions that may be considered are irrebuttable and rebuttable
presumptions. The former are not true presumptions in strict sense but mere rules of
substantive law. Among the basis of presumptions is procedural expediency.

Objectives

At the end of this Unit, the student should be able to demonstrate understanding on:

 The types of presumptions there are and why certain rules of substantive law are not
presumptions in strict sense.

 Students should also be acquainted with knowledge of specific true presumptions and
how they can be rebutted.

Topic 1 - Types of Presumptions

Irrebuttable presumptions

The term ‗presumption‘ is unfortunately frequently applied to rules of law which are in
reality quite distinct from presumptions, and for the purpose of distinguishing these false
presumptions, true presumptions are then unnecessarily referred to as ‗rebuttable
presumptions of law‘.2 The two most commonly encountered false presumptions are as
follows:

Doli incapax (incapable of wrong)

A child under the age of eight cannot be guilty of a criminal offence

This is provided for under section 14 (1) of the Penal Code Act.3 It provides that: "A person
under the age of eight years is not criminally responsible for any act or omission."

1
Glover, R. (Ed.). (2013). Murphy on Evidence. (13th Ed.). Oxford: Oxford University Press. p709.
2
Ibid., p710.
3
Chapter 87 of the Laws of Zambia.
 19

A boy under twelve is incapable of sexual intercourse

Section 14 (3) of the Penal Code makes provision for this. It enacts that: "A male person
under the age of twelve years is presumed to be incapable of having carnal knowledge."4

It is now almost universally agreed that such rules are rules of substantive law, and have
nothing to do with the rules of evidence. Though sometimes termed ‗irrebuttable‘ or
‗conclusive‘ presumptions, they are clearly not presumptions at all. An irrebuttable
presumption is a contradiction in terms.5 The so-called irrebuttable presumptions are really
simply rules of law which preclude the assertion of some necessary fact, without which cases
of a certain sort cannot be maintained. However, the rules will not hold upon proof to the
contrary upon which the fact lies. Thus, if there is proof that a particular boy is not below the
age of twelve for instance, the rule has no application.

Rebuttable presumptions

Almost every presumption is a rebuttable presumption, i.e. it holds good only in the absence
of contrary evidence. Thus, the presumption of innocence is destroyed by positive proof of
guilt.6A presumption requires two things: (a) that a certain primary fact shall be proved; and
(b) that on proof of the primary fact, a presumed fact shall thereupon be taken to have been
proved, in the absence of evidence to the contrary. A rule of law that has the two
requirements set forth above may properly be termed a true presumption.

Topic 2 - Basis of Presumptions

The theoretical basis for recognizing presumptions is that the presumed fact would, in the
usual course of events, flow naturally from the existence of the primary fact, so that there is
such a strong rational connection between the two that it is unnecessary to require evidence
of the presumed fact in the absence of unusual circumstances.7

Topic 3 - Specific Presumptions

Presumption of death

A person will be presumed to have died on proof of the following primary facts: (a) that there
is no acceptable evidence that the subject has been alive at some time during a continuous

4
Ibid.
5
Supra note 1 p709.
6
Law, J. (Ed.). (2009). Oxford Dictionary of Law. (7th Ed.). London: Oxford University Press. pp420-1.
7
Supra note 1 p709.
 20

period of seven years or more; (b) that there are persons likely to have heard of him, had he
been alive, who have not heard of him during that period; and (c) that all due inquiries have
been made with a view to locating the subject, without success.8

The existence of a person likely to have heard of the subject appears to be a necessary
requirement, and was so treated by Sachs J in his judgment in the leading modern case of
Chard v Chard9 the learned judge refused to presume a wife to be dead, even though there
was no evidence that she had been alive since 1918. The issue was whether she was alive in
1933 (when she would have been aged 43), in which year the husband had gone through a
ceremony of marriage with the petitioner, who now sought a decree of nullity based on its
bigamous character. The husband had spent most of the intervening period in prison, and
there was no reason to suppose that he was likely to have heard of his first wife between 1918
and 1933. Since there was no person likely to have heard of the first wife during this time,
Sachs J held that the presumption of death could not apply, and granted the decree.

There is some authority for saying that the absence of a person likely to have heard may be
remedied by the making of all reasonable inquiries, but the better view seems to be that the
two primary facts are separate, and that each is necessary. What amounts to the making of
reasonable inquiries, and what amounts to the absence of acceptable evidence that the subject
is alive during the period, are questions of fact in every case.10

The presumption is only that the subject is dead at the date of trial, although in a number of
decisions it appears to have been applied retrospectively. In Chipchase v Chipchase11, the
wife married her first husband in 1915, and having heard nothing of him after 1916 went
through a ceremony of marriage with her second husband in 1928. When the wife applied for
a maintenance order against the second husband in 1939, it was successfully objected that the
1928 marriage was not shown to be valid, there being no evidence that the first husband was
dead in that year. The Divisional Court remitted the case to the magistrates to consider
whether there was any evidence to rebut the presumption of death, although strictly the
presumption should have been only that the first husband was dead at the date of the trial in
1939, and not in 1928.

8
Ibid., p715.
9
[1956] P 259.
10
Supra note 1 p715.
11
[1939] P 391.
 21

The period of seven years is, however, strictly insisted upon, and though the rule is
essentially arbitrary, a period of six years and 364 days is not enough. Nor is there any
presumption that the subject died from any particular cause, died childless, or died celibate.12

The following statutory provisions should be noted in connection with the presumption of
death:

Matrimonial Causes Act

The Matrimonial Causes Act13 in Section 24 enacts as follows:

―24. (1) Any married person who alleges that reasonable grounds exist for supposing that the
other party to the marriage is dead may present a petition to the Court to have it presumed
that the other party is dead and to have the marriage dissolved, and the Court, if satisfied that
such reasonable grounds exist, may make a decree of presumption of death and dissolution of
the marriage.

(2) In such proceedings the fact that for a period of seven years or upwards the other party to
the marriage has been continually absent from the petitioner, and the petitioner has no
reason to believe that the party has been living within that time, shall be evidence that he or
she is dead until the contrary is proved.‖

Marriage Act

The Marriage Act14 in section 38 provides that:

―Provided that this section shall not extend to any person who contracts a marriage during the
life of a former husband or wife, if such husband or wife, at the time of the subsequent
marriage, shall have been continually absent from such person for the space of seven years,
and shall not have been heard of by such person as being alive within that time.‖

Penal Code Act

Similarly, section 166 of the Penal Code15 stipulates that: ―Provided that this section shall not
extend to any person whose marriage with such husband or wife has been declared void by a
court of competent jurisdiction, nor to any person who contracts a marriage during the life of
a former husband or wife, if such husband or wife, at the time of the subsequent marriage,

12
Supra note 1 p716.
13
Act No. 20 of 2007.
14
Chapter 50 of the laws of Zambia.
15
Supra note 3.
 22

shall have been continually absent from such person for the space of seven years, and shall
not have been heard of by such person as being alive within that time‖.

This entails that the presumption of death if successful, affords a defence to a charge of
bigamy.

Presumption of Innocence

The presumption of innocence is the fundamental principle that a person may not be
convicted of a crime unless the prosecution proves guilt beyond a reasonable doubt, without
any burden placed on the accused to prove innocence.16

The presumption is so fundamental that it was constitutional foundation. The Constitution in

Article 18 (2) (a) states that: "Every person who is charged with a criminal offence-

(a) shall be presumed to be innocent until he is proved or has pleaded guilty."17

Thus, as a general rule, the onus to prove the guilt of an accused person rests on the
prosecution. This was illustrated in the case of Woolmington v Director of Public
Prosecutions18 in which the accused‘s estranged wife refused his plea for reconciliation. He
went to visit his wife at her mother‘s carrying a loaded shotgun whose barrels he had sawn
off. He shot her dead. He claimed that he had taken the gun to convince his wife that he
would commit suicide if she did not return to him, but that, when she had turned him down,
as he was taking out the gun from under his coat it went off accidentally and shot her dead.
The trial judge directed the jury as follows:

Once it is shown to a jury that somebody has died through the act of another, that is presumed
to be murder, unless the person who has been guilty of the act which causes the death can
satisfy a jury that what happened was something less, something which might be alleviated,
something which might be reduced to a charge of manslaughter, or was something which was
accidental, or was something which could be justified. The accused was convicted and his
appeal was dismissed by the Court of Criminal Appeal. He appealed to the House of Lords
and they held that:

―Throughout the web of the English criminal law one golden thread is always to be
seen — that it is the duty of the prosecution to prove the prisoner‘s guilt... the principle that

16
Garner, B. (2009). Black’s Law Dictionary. (9th Ed.). New York: Thompson West. pp1305-6.
17
Chapter 1 of the Laws of Zambia.
18
[1935] AC 462.
 23

the prosecution must prove the guilt of the prisoner is part of the common law of England and
no attempt to whittle it down can be entertained.‖

However, there are situations where the law may place on the accused the burden to prove
certain facts. Thus, the Constitution in Article 18 (12) states that:

―Nothing contained in or done under the authority of any law shall be held to be inconsistent
with or in contravention of-

(a) paragraph (a) of clause (2) to the extent that it is shown that the law in question imposes
upon any person charged with a criminal offence the burden of proving particular facts.‖19

Thus, in terms of the preceding provision, it is perfectly possible for an Act of Parliament to
place on an accused person the evidential burden of proving certain facts to the satisfaction of
the Court. An example can be found in Section 71 (1)-(3) of the Forfeiture of Proceeds of
Crime Act20 which enacts as follows:

―71. (1) A person who, after the commencement of this Act, receives, possesses, conceals,
disposes of or brings into Zambia any money, or other property, that may reasonably be
suspected of being proceeds of crime commits an offence and is liable upon conviction to—

(a) if the offender is a natural person, imprisonment for a period not exceeding five years; or

(b) if the offender is a body corporate, a fine not exceeding seven hundred thousand penalty
units.

(2) It is a defence under this section, if a person satisfies the court that the person had no
reasonable grounds for suspecting that the property referred to in the charge was derived or
realised, directly or indirectly, from any unlawful activity.‖

In The People v Austin Chisangu Liato21 the Supreme Court observed that: "...the
presumption of innocence and the onus of proof which it entails, the law does, in appropriate
instances, cast the evidentiary burden on the accused person to prove certain facts."

19
Supra note 17.
20
Act No. 19 of 2010.
21
[2015] ZMSC 26.
 24

Presumption of Sanity

The Penal Code22 in section 11 enacts that: ―Every person is presumed to be of sound mind,
and to have been of sound mind at any time which comes in question, until the contrary is
proved.‖

Where an accused person pleads insanity, the burden (to be discharged on a balance of
probability) is placed on him. Once this is successfully done, the presumption of sanity is
rebutted and a special finding of not guilty by reason of insanity is returned. In the case of
Edward Sankalimba v the People23the appellant was charged with and subsequently
convicted of murder by the High Court. The appellant stabbed the deceased to death with a
knife. His evidence was that he believed that he was stabbing an animal. Evidence was
adduced to show that the appellant had suffered from a mental illness before and had behaved
in unusual manner on several occasions. Two defences were advanced, namely mistaken
belief and lack of intention. It was held that the appellant intended to do grievous harm to his
victim but he was not criminally responsible for his actions because at the time, due to his
mental illness he was incapable of understanding what he was doing which brings him within
the ambit of section 12 of the Penal Code.

Doli capax (Capable of wrong)

In terms of section 14 (2) of the Penal Code:24 "A person under the age of twelve years is not
criminally responsible for an act or omission, unless it is proved that at the time of doing the
act or making the omission he had capacity to know that he ought not to do the act or make
the omission."
25
The operation of this presumption was illustrated in the case of R v F.C (A Juvenile) in
which, a boy who sold a watch and told a lie that he had been authorised by someone else to
sell it was found guilty of theft because by telling a lie, the Juvenile knew that what he was
doing was wrong.

22
Supra note 3.
23
(1981) Z.R. 258 (S.C.).
24
Supra note 4.
25
H.C. N. R 1941.
 25

Presumption of Legitimacy

It will be presumed that a child is the legitimate child of a husband and wife, and accordingly
that access took place between them resulting in conception of the child, on proof of the
following primary facts:

(a) that the child was born to the wife;

(b) that it was born during lawful wedlock or within the normal period of gestation after
wedlock has ended; and;

(c) that the husband was alive at the date of conception.26

This presumption is hedged about with historical considerations, principally the concern of
the common law not to permit proceedings to bastardize children and so subject them to the
once considerable stigma of illegitimacy.27 With the enactment of the Legitimacy Act28
which Act effectively abolished the distinction between legitimate and illegitimate children,
the presumption is of no practical relevance today.

The presumption is unlikely to arise in a criminal case, but it is submitted that, if this should
occur, the standard of proof on rebuttal would vary according to whether the rebuttal was
being attempted by the prosecution or the defence. Only in the former case would a standard
beyond reasonable doubt be required.29

Study Questions

1. What is the rationale for presumptions?

2. Why is the expression ―irrebuttable presumptions‖ an anomaly?

3. List and briefly discuss five (5) presumptions a court may encounter in a criminal case.

4. List and briefly explain five (5) presumptions a court may encounter in a civil case.

26
Supra note 1 pp711-12.
27
Ibid.
28
Chapter 52 of the Laws of Zambia.
29
Supra note 1 p712.
 26

Unit 4: Judicial Notice

Introduction

Judicial notice refers to the means by which the court may take as proven certain facts
without hearing evidence. Notorious facts (i.e. matters of common knowledge) may be
judicially noticed without inquiry.1 Judicial notice is taken of matters that would make it an
affront to intelligence if evidence was required. Two main reasons have been suggested as
justifying the doctrine of judicial notice. The first is that it expedites the hearing of cases. The
second is that it tends to produce uniformity of decisions on matters of fact. It is impossible to
categorise all the instances in which the court can take judicial notice of a fact. But for our
purposes, the following can be considered: legal matters, historical facts and other facts.

Objectives

 At the end of this Unit, students should demonstrate understanding on what matters
the court can take judicial notice of.

Topic 1 - Judicial Notice

Cross opines that it is pointless to make a list of cases in which courts have taken judicial
notice of facts without inquiry since the justification for the courts acting in such a way is that
the fact is too notorious.2 Nevertheless, this Unit attempts to categorise a few instances. The
categories put forward here are: legal matters, geographical facts and other facts.

1. Legal matters

Statutes

Section 6 (2) of Interpretation and General Provisions Act provides that: ―Every Act, Applied
Act or British Act shall be a public Act and shall be judicially noticed as such.‖3

The record of another court

In Shamwana and 7 Others v The People4overruling an earlier case, it was held that a court
can take judicial notice of the record of another court.

1
Law, J. (Ed.). (2009). Oxford Dictionary of Law. (7th Ed.). London: Oxford University Press. p306.
2
Tapper, C. (2007). Cross and Tapper on Evidence. (11th Ed.). Oxford: Oxford University Press. p.130.
3
Chapter 2 of the Laws of Zambia.
4
(1985) Z.R. 41 (S.C.).
 27

2. Geographical facts

In Hubert Sankombe v The People5 the appellant, who was initially charged with attempted
murder, was acquitted on that charge because of the prosecution's failure to prove mens rea,
but was convicted of unlawful wounding. Both at the trial and on appeal the defence was one
of alibi, namely, that the appellant was in Mindolo Township, Kitwe, at the time the
complainant was assaulted A Kalulushi; the issue was whether it was feasible for the
appellant to have made his way from Mindolo to Kalulushi and back in the available time of
about five hours. At the trial both the court and counsel proceeded on the assumption that the
distance between Kalulushi and Mindolo Township in Kitwe was known to all of them. The
learned judge obviously took judicial notice of the distance between Kalulushi and Mindolo
Township although he did not say so in terms.

Held:

(i) The distance between clearly defined geographical locations, such as towns, is a matter of
which judicial notice can and should be taken.

(ii) Under section 18 of the Interpretation and General Provisions Act, Chapter 2, every
statutory instrument shad be published in the Gazette and shall be judicially noticed.
Statutory Instrument No.37 of 1971 designates the road between Kitwe and Kalulushi and
gives the distance as 13.4 kilometres, this distance was therefore A matter to be judicially
noticed.

Other facts

In Mwape v The People6a question arose as to whether a court can take judicial notice of the
guarding of shops by watchman. It was held that in this country, the guarding of shops, like
many other commercial and industrial concerns, has become a common feature and judicial
notice can be taken of this.

A court may, and in some cases must, take judicial notice of various matters. It will, for
instance, take judicial notice of matters of common knowledge which are so notorious that to
lead evidence in order to establish their existence may be unnecessary and could, as Phipson
puts it in his Manual of the Law of Evidence, 10th Edition at page 21 be "an insult to the
intelligence to require evidence".

5
(1977) Z.R. 127 (S.C.).
6
(1976) Z.R. 160 (S.C.).
 28

Facts found by judges in the light of their personal knowledge

In Gastove Kapata v The People7at the close of the trial, there was no evidence to prove that
the road on which the offence was committed was a public road. The fact that the said road
was a public road was a necessary element of the charge. The court took judicial notice of the
road and held that it was a public road; and convicted the accused.

The accused appealed.

On appeal it was held that:

(i) In so far as the utilisation of personal knowledge is concerned, the general rule is that a
court may, in arriving at its decision in a particular case, act on its own personal knowledge
of facts of a general nature, that is notorious facts relevant to the case.

(ii) The Commissioner being a resident of Kitwe was entitled to make use of his personal
knowledge of a general matter, that is of a notorious matter, namely, that the road in question
was public road to which the public had access.

Study Questions

1. What five (5) categories of facts have the Zambian courts taken judicial notice of?

2. Can a judge take judicial notice of a fact which is in his personal knowledge but which is
not of general knowledge?

7
(1984) Z.R. 47 (S.C.).
 29

Unit 5: Estoppels
Introduction

Estoppel is a rule of evidence or a rule of law that prevents a person from denying the truth of
a statement he has made or from denying facts that he has alleged to exist. The denial must
have been acted upon (probably to his disadvantage) by the person who wishes to take
advantage of the estoppel or his position must have been altered as a result. There are several
varieties of estoppel.1 This Unit considers: Estoppel by record (or per rem judicatam),
Estoppel by deed and Estoppel by conduct (or in pais).

Objectives

 At the end of this Unit, the student should be able to demonstrate understanding on
what estoppel is and what three main recognised types of estoppel there are.

Topic 1 - Estoppel by record

Estoppel by record prevents a person from reopening questions that are res judicata (i.e. that
have been determined against him in a previous legal proceeding).2

In Musakanya Valentine Shula and Edward Jack Shamwana v Attorney-General3 the two
petitioners brought actions by way of motion to the High Court which were dismissed by
Chaila J. They then sought to bring the same petitions before another High Court judge. A
preliminary issue was raised on behalf of the State in both petitions to the effect that these
petitions are barred on the doctrine of res judicata.

Counsel for Mr Musakanya submitted that the doctrine of res judicata is not an absolute rule
of law, that the courts have discretion and there are exceptions to the general rule; that since
the present application is in a nature of an ordinary bail in a criminal matter, an applicant
can, if unsuccessful, move from one judge to another in habeas corpus proceedings and that
being the case, the proceedings of habeas corpus by petitioner Musakanya are no bar to the
present proceedings. Mr Shamwana on his own behalf in addition to endorsing what had
been submitted by counsel for petitioner Musakanya as applying to him, argued, inter alia,
that res judicata applies only to facts and not to law and that the present proceedings are on
law.

1
Law, J. (Ed.). (2009). Oxford Dictionary of Law. (7th Ed.). London: Oxford University Press. p207.
2
Ibid.
3
(1981) Z.R. 221 (H.C.).
 30

It was held that:

(i) Res judicata is a strict rule of law and the parties are bound by any decision made by a
competed court.

(ii) The words "without prejudice to any other action with respect to the same matter which is
lawfully available" do not give the petitioner more than one chance to seek his freedom on
the same facts or grounds. The words do not give him any additional rights to come back to
court on the same facts but merely an alternative method of seeking redress.

(iii) Where a criminal or a civil application for habeas corpus has been made by or in respect
of any person, no such application shall again be made by or in respect of that person on the
same grounds, whether to the same court or judge unless fresh evidence is adduced in support
of the application.

(iv) If facts are the same, the law should be the same. If from a given accepted facts a court
pronounces the law, it cannot be said that only facts will bind the parties thereto and not the
law.

Autrefois acquit and autrefois convict

Autrefois acquit is the plea that the accused has been previously acquitted whilst autrefois
convict is the plea that the accused has been previously convicted. According to Blackstone,
the pleas of autrefois acquit and autrefois convict are ―grounded on the universal maxim of
the common law in England that no man is to be brought into jeopardy of his life more than
once for the same offence‖4 These pleas enable a person charged in later criminal
proceedings to raise a defence that he has been convicted.

The above find support in section 138 of Criminal Procedure Code Act5 which provides that:

"138. A person who has been once tried by a court of competent jurisdiction for an offence,
and convicted or acquitted of such offence, shall, while such conviction or acquittal remains
in force, not be liable to be tried again on the same facts for the same offence."

4
Blackstone, W. (1829). Commentaries on the Law of England: Book IV. Dublin: Maxwell Stevens & Sons.
p329.
5
Chapter 88 of the Laws of Zambia. See also Article 18 (5) of the Constitution of Zambia, Chapter 1 of the
Laws of Zambia.
 31

Topic 2 - Estoppel by Deed

Estoppel by deed prevents a person who has executed a deed from saying that the facts stated
in the deed are not true.6 In Bowman v Taylor7 a lease granted by the plaintiff to the
defendant to use looms contained a recital that the plaintiff was the inventor of those looms.
In an action for breach of covenant to pay the agreed sums for their use, the defendant was
estopped from denying that the plaintiff was the inventor.

Topic 3 - Estoppel by Conduct

Estoppel by conduct arises when the party estopped has made a statement or has led the other
party to believe in a certain fact.8 In Pickard v Sears9 it stated that:

―Where one by his words or conduct wilfully causes another to believe in the existence of a
certain state of things, and induced him to act on that belief, or to alter his previous position,
the former is precluded from averring against the latter a different state of things as existing
at that time.‖

Further, in H.C. Sitanga v The Attorney-General10 the plaintiff was employed on permanent
and pensionable staff in the Prisons Department. On the 19th December, 1974, he was
prematurely retired by the Commissioner of Prisons for the purpose of the re-organisation of
the Prison Service. The plaintiff asked for a declaration that the retirement was null and void.
The defendant contended that the Commissioner of Prisons had power to retire the plaintiff;
he argued also that the plaintiff having accepted terminal benefits was estopped from
challenging the validity of the retirement.

Held:

(i) With the coming into force of the Constitution of Zambia 1973 (Act No. 27 of 1973), the
power to appoint and remove from office, until such time that the Prison Service Commission
was established, vested in the President himself and not in the Commissioner of Prisons. The
Constitution of Zambia 1973 did not save the powers of the Commissioner of Prisons given
under section 117 of the 1964 Constitution.

6
Supra note 1 p207.
7
(1834) 2 A& E 278.
8
Supra note p207.
9
(1837) 6 Ad & El 469.
10
(1977) Z.R. 258 (H.C.).
 32

(ii) The Civil Service (Local Conditions) Pensions Act, Chapter 140, section 29, does not
give any power to retire any officer but merely provides a machinery for payment of benefits.

(iii) Estoppel may be defined as a disability whereby a party is precluded from alleging or
proving in legal proceeding that a fact is otherwise than it is made to appear by the matter
giving rise to that disability.

(iv) Estoppel is a rule of evidence which comes into operation if (a) a statement of the
existence of a fact has been made by the defendant to the plaintiff, (b) with the intention that
the plaintiff should act upon the faith of the statement, and (c) the plaintiff does act upon the
faith of the statement.

(v) The facts relied on to establish an estoppel of any kind (including estoppels in pais)
should be pleaded in any case in which it is intended to rely upon it.

Study Questions

1. Mudenda was tried and convicted of being in possession of narcotic and psychotropic
substances. A week later, he was on the same facts charged with trafficking in such
substances. Will the prosecution be a success?

2. Phiri failed to disclose the fact that his wife had been forging his cheques. Can he be
estopped from denying this to be the case in an action to recover the amounts paid to his wife
and debited to his account by the bank?

3. Silwamba and Liswaniso executed an assignment for the sale of a house as vendor and
purchaser respectively. In case of a dispute between the two, can any of them deny any of the
contents of such assignment?
 33

Unit 6: Witnesses: Competence and Compellability

Introduction

A witness in proceedings is a person who gives evidence, either by way of written statement
or orally. In court, witnesses are required either to give evidence on oath or to affirm that
their evidence.1 Hatchard and Ndulo observe that the general rule is that anyone is both a
competent and compellable witness in any proceedings, although in certain cases a witness
may refuse to answer to questions on the grounds of privilege or public policy. A competent
witness is one who is free from personal characteristics which would disable him from giving
evidence before a court. A compellable witness is not only competent but may be lawfully
obliged to give evidence on pain of being in contempt of court.2

Objectives

At the end of this Unit, the student must demonstrate understanding on:

 The concepts of competence and compellability of specific witnesses namely: the

accused, spouse of accused or co-accused, children and other categories of witnesses
such as the mentally challenged.

Topic 1 - The Accused

The accused in a criminal case is not competent as a prosecution witness. He is competent,

but not compellable, to give evidence in his own defence and may not be called except on his
own application. If the accused fails to give evidence, an adverse inference may be drawn
against him in certain circumstances.3

The above position support in Article 18 (7) of the Constitution which provides that: ―A
person who is tried for a criminal offence shall not be compelled to give evidence at
the trial.‖

In Mumba v The People4 the applicant was being tried in the lower Court for an offence
under the Corrupt Practices Act. Under section 53(1) of the Act, it was a requirement that if
the accused elected to say something in defence, he had to say it on oath only. This clearly

1
Law, J. (Ed.). (2009). Oxford Dictionary of Law. (7th Ed.). London: Oxford University Press. p591.
2
Hatchard, J. &Ndulo, M. (1991). The Law of Evidence in Zambia: Case & Materials. Lusaka: Southern African
Institute for Policy and Research. p83.
3
Glover, R. (Ed.). (2013). Murphy on Evidence. (13th Ed.). Oxford: Oxford University Press. p552.
4
(1984) ZR 38 (HC).
 34

excluded the option to make an unsworn statement. The defence submitted that the provisions
of section 53(1) of the Act contravened article 20(7) of the Constitution.

Held: The Court held that an accused person in a criminal trial cannot be compelled to give
evidence on oath if he elects to make an unsworn statement. Consequently, the Court
declared that the said section 53(1) of the Corrupt Practices Act was unconstitutional and
therefore null and void and that it should be severed from the Act.

Section 157 of the Criminal Procedure Code Act makes provision for the competency of
accused and husband or wife as witnesses. It enacts as follows:

―157. Every person charged with an offence, and the wife or husband, as the case may be, of
the person so charged, shall be a competent witness for the defence at every stage of the
proceedings, whether the person so charged is charged solely or jointly with any other
person: Provided that-

(i) a person so charged shall not be called as a witness in pursuance of this section, except
upon his own application.‖

However, there are several ways of rendering an accused competent and compellable where
several people are charged in an indictment. The following are some of those instances:

(i) where a nolle prosequi(shall no longer prosecute) is entered;5

(ii) where it is stated that no evidence will be offered against the accused and he is acquitted;6

(iii) where an order for separate trials is obtained.7

In Shamwana and 7 Others v the People8 the first six others were convicted of treason. In the
appeal against conviction, it was argued that evidence of an accomplice, General Kabwe
(PW5), was wrongly admitted.

The Court found that: "...because PW5 had been granted an indemnity, that is, an immunity
from prosecution. An indemnity has the same effect as, and is to all intents and purposes, a
pardon."

5
R v Sharman (1736) Cas. KB Temp Hardw 303.
6
R v Rowland (1826) Ry&M 401.
7
Winsor v R (1866) LR 1 QB 390.
8
(1985) Z.R. 41 (S.C.).
 35

Mr Shamwana had argued that PW5 was not free agent when he gave evidence in this case as
failure to give evidence would have relegated him to his former position, which would have
meant his being re-detained and prosecuted. The Supreme Court rejected that argument as
flawed.

Topic 2 – Spouses

The spouse of the accused is (1) competent and compellable as a witness for the accused; (2)
competent but, except in the case of certain specified offences, not compellable for the
prosecution or a co-accused.9

In the People v Mushaikwa10 the accused was charged with murder. The prosecution sought a
ruling from the court as to whether the accused's wife, who was the only eye witness, was a
competent witness for the prosecution. The prosecution alleged that the accused had
consented to his wife giving evidence.

Held:

(i) The case did not fall within section 151 of the Criminal Procedure Code, Chapter 160
(now Chapter 88) and therefore the question had to be decided according to common law
rules.

(i) At common law the wife of an accused person is not a competent witness for the
prosecution save in cases of forcible marriage and possibly treason on both of which
occasions the spouse is competent and compellable.

(ii) Generally all competent witnesses are compellable; but in the case of the spouse of an
accused person although the spouse may be rendered by statute a competent witness in
certain cases the spouse is not compellable in these instances.

(iii) In these instances the court has a duty to inform the spouse that he/she has the right to
refuse to give evidence.

(iv) Failure by the court to give such warning renders the evidence given by the spouse totally
inadmissible.

9
Supra note 3 p552.
10
(1973) Z.R. 161 (H.C.).
 36

In Crispin Soondo v The People11 the applicant was convicted of stock theft. The applicant
was not found possession of any part of the stolen and slaughtered animal but the co-accused
with whom he was tried, was so found. Nonetheless, the learned trial magistrate found that
the co-accused had no case to answer and acquitted him. The Supreme Court was however of
the view that the co-accused should have been put on his defence. The applicant appealed on
the basis of an alibi, and on the ground that the learned trial magistrate erred in admitting the
evidence of PW2, who was the wife of the second accused. The State did not support the
conviction.

It was held that where two or more persons are indicted jointly, the wife or husband of any
such defendant is not a competent witness against any co-defendant.

Topic 3 – Children

At common law, an infant of any age may be sworn in if he appears sufficiently to understand
the nature and moral obligation of an oath and understands the duty of speaking the truth.12
Formerly, under Zambian law, the procedure on receiving the evidence of a child of tender
age (which age was undefined by statute) was well stated in Zulu v The People13 in which it
was stated that the correct procedure under section 122 of the Juveniles Act, Chapter 217
(now Chapter 53), was as follows:

(a) The court must first decide that the proposed witness is a child of tender years; if he is not,
the section does not apply and the only manner in which the witness' evidence can be
received is on oath.

(b) If the court decides that the witness is a child of tender years, it must then inquire whether
the child understands the nature of an oath; if he does, he is sworn in the ordinary way and his
evidence is received on the same basis as that of an adult witness.

(c) If, having decided that the proposed witness is a child of tender years, the court is not
satisfied that the child understands the nature of an oath, it must then satisfy itself that he is
possessed of sufficient intelligence to justify the reception of his evidence and that he
understands the duty of speaking the truth; if the court is satisfied on both these matters then
the child's evidence may be received although not on oath, and in that event, in addition to
any other cautionary rules relating to corroboration ... there arises the statutory requirement

11
(1981) Z.R. 302 (S.C.).
12
Taylor, J.P. (1931). A Treatise on the Law of Evidence. Vol. 2. London: Sweet & Maxwell. p869.
13
(1973) Z.R. 326 (S.C.).
 37

of corroboration contained in the proviso to section 122 (1). But if the court is not satisfied
on either of the foregoing matters the child‘s evidence may not be received at all.

Under current Zambian law, the age of a child of tender age has now been prescribed by
statute (as a child below the age of fourteen). This entails that the courts have now been
relieved of the duty to ascertain - without a prescribed starting point - whether or not a child
is of tender age. Secondly, current Zambian law has abolished the receipt of unsworn
evidence of a child of tender age. The other steps stipulated in Zulu above have been
preserved.

The foregoing was by virtue of section 122 of the Juveniles Act14 as amended by Act No. 3 of
2011. The current section 122 enacts as follows (in part):

"122. Where, in any criminal or civil proceedings against any person, a child below the age of
fourteen is called as a witness, the court shall receive the evidence, on oath, of the child if, in
the opinion of the court, the child is possessed of sufficient intelligence to justify the
reception of the child‘s evidence, on oath, and understands the duty of speaking the truth:

Provided that-

(a) if, in the opinion of the court, the child is not possessed of sufficient intelligence to justify
the reception of the child‘s evidence, on oath, and does not understand the duty of speaking
the truth, the court shall not receive the evidence."15

The Court determines the sufficiency of intelligence and its appreciation of being truthful by
conducting a mini trial known as a voir dire (to speak the truth). There are no standard
questions the court is to ask when conducting a voir dire.

Topic 4 - Other categories of witnesses

The mentally challenged

Mentally challenged persons are only competent to give evidence if they understand the duty
of being truthful on oath. The Court ascertains that by questioning the proposed witness.16

In R v Bellamy17the victim of an alleged rape suffered from a mental disability, and her
competence as a witness fell to be investigated at trial. The trial judge, properly, examined

14
Chapter 53 of the Laws of Zambia.
15
Ibid., as amended by Act No. 3 of 2011.
16
Supra note p98.
 38

the complainant and heard evidence from a social worker on the subject. Having done so, he
found that the complainant was capable of understanding the duty to speak the truth, and of
testifying, but that she lacked sufficient belief in or knowledge of God to take the oath. The
judge ordered her to affirm. On appeal against conviction, it was argued for the accused that
the witness should have been required to take the oath, and that this breach of the rule
requiring sworn evidence should lead to the conviction being quashed. The Court of Appeal
agreed with the first proposition, and the second would have followed, except that the court
found itself able to dismiss the appeal by applying the proviso to section 2 of the Criminal
Appeal Act 1968, since on the whole of the evidence, the result of the trial must have been
the same. It was held that no inquiry need be made into the religious belief of the witness.

The President

Article 98 of the Constitution18 grants sitting president immunity from legal proceedings
(both civil and criminal). The President would seem to be a competent but not a compellable
witness.

Diplomats

By virtue of the Diplomatic and Privileges Act,19 foreign diplomats enjoy extensive immunity
from legal proceedings. The immunity holds unless waived by the sending state. Foreign
diplomats are therefore competent but not compellable witnesses.20

Topic 5 - Civil Proceedings

Ndulo and Hatchard cite the English Evidence Act 1851 as subsequently amended on the
position of competence and compellability of the parties or their spouses. The parties are both
competent and compellable. Thus, a plaintiff can compel the defendant and any other person
to testify. The spouse of a party to litigation is also competent and compellable.21

Study Questions

1. Josaka had married Jelita only two days before he was to face trial for assaulting her. Jelita
is the only proposed witness for the State. Is she a competent and compellable witness?

17
(1986) 82 Cr App R 222.
18
Chapter 1 of the Laws of Zambia as amended by Act No. 2 of 2016.
19
Chapter 20 of the Laws of Zambia.
20
Supra note 1 p98.
21
Ibid.
 39

2. Is the English Evidence Act 1851 as subsequently amended applicable to Zambia as the
Law on competence and compellability in civil matters?

3. Can a child of tender age facing a criminal trial give unsworn evidence in its defence under
current Zambian law?
 40

Unit 7: Examination of Witnesses

Introduction

There are three types of examinations a witness may be subjected to. These are examination-
in-chief, cross-examination and re-examination. Specific rules govern these different types of
examinations.

Objectives

At the end of this Unit, the student should be able to demonstrate understanding on:

 The specific rules governing examination-in-chief, cross-examination and re-

examination.

 The Student is expected to be acquainted with knowledge on the position of witnesses

who prove to be unfavourable or hostile to the party calling them;

 The treatment of such witnesses during examination in chief and special rules, which
include the use of previous statements by the witness inconsistent with his evidence.

Topic 1 - Examination-In-Chief

Examination-in-chief (also known as direct examination) is the questioning of a witness by

the party who called him to give evidence. Leading questions may not be asked, except on
matters that are introductory to the witness' evidence or are not in dispute or (with permission
of the judge) when the witness is hostile. The purpose of examination-in-chief is to elicit facts
favourable to the case of the party conducting the examination. It is followed by a cross-
examination by the opposing party.1

Leading questions

It is important that evidence in chief should be given in the words of the witness, not those of
the examiner, and consequently leading questions are not permitted (except in any of the
exceptions noted above). A leading question is one which puts words into the witness‘s
mouth, or suggests directly the answer which the examiner expects of him.2

1
Law, J. (Ed.). (2009). Oxford Dictionary of Law. (7th Ed.). London: Oxford University Press. pp214-215.
2
Glover, R. (Ed.). (2013). Murphy on Evidence. (13th Ed.). Oxford: Oxford University Press. p589.
 41

Refreshing memory

At common law any witness may refresh his recollection while giving evidence, with leave of
the court, using any document made or verified by him at or near the time of the events about
which he is giving evidence.3

In R v Cheng4 the police officer concerned no longer had the relevant notebook and sought to
refresh his memory from a statement he had prepared from his notebook and used at
committal proceedings. The defence objected because it was only a partial not exact copy of
the notebook. The Judge ruled that the officer could refer to his statement and the defendant
was convicted. He appealed.

The Court of Appeal held that: "If the statement in this case, or any other transcription of
notes in other cases, is substantially what is in the notes and there is evidence to that effect,
then the Judge should allow the witness to refresh his memory from the statement or
transcription as the case may be."

Previous consistent statements

At common law, previous consistent statements are generally inadmissible. In general, they
lack the non-hearsay relevance of previous inconsistent statements. If tendered during
evidence in chief in addition to the evidence of the witness, they are simply cumulative and
self-serving, and have the undesirable effect of needlessly supporting the credibility of the
witness before anyone has attacked it. For example, if a witness gives evidence that the light
was green in the claimant‘s favour when he entered the intersection, and adds that he has
been saying exactly the same thing to anyone willing to listen ever since the accident
happened, the latter statement has no real evidential value.5

However, there are certain specific cases in which a previous statement made by a witness
enjoys an additional relevance, and in these cases, they may be admissible at common law.
The cases identified at common law as bringing about such additional relevance are:

(a) Where the statement is admissible under the res gestae principle as an exception to the
rule against hearsay, for the purpose of explaining and supplementing evidence of events of
which it is an integral part.

3
Ibid., p595.
4
[1976] Crim.L.R. 379.
5
Supra note 2 p590.
 42

(b) Where a wholly or partially exculpatory statement is made by the accused in a criminal
case in response to questions put to him about the offence where the statement is tendered
for the purpose of rebutting an allegation of recent fabrication;

(d) Where the statement is admissible as a recent complaint in a sexual case for the purpose
of confirming the complainant‘s evidence; and

(e) where the statement is one identifying the accused in a criminal case as the person who
committed the off ence charged.6

In R v Roberts7 the Accused was charged with murder, he testified that the killing was an
accident and wanted to call his father as witness that he had told him the killing was an
accident on the night of the deceased‘s death. He was not permitted to call his father as a
witness.

The Court of Appeal held that:

"We think the evidence was properly refused. Of course, if the statement had been made to
the father just at the time of the shooting, that would have been a totally different matter,
because it has always been regarded as admissible that a person should be allowed to give in
evidence any statement accompanying an act so that it may explain the act. It was put by
counsel for the appellant that the statement might be admissible on the ground that the
accused had been asked in cross examination, and it had been suggested to him in cross-
examination that this story of accident was one which he had recently concocted. If any such
question had been put, undeniably the evidence would have been admissible as showing it
was recently concocted, because the accused had said so on the very day the incident
occurred. The answer is that no such question had been put, and no suggestion made, to the
accused."

The Appeal was allowed on other grounds.

6
Ibid., p591.
7
[1942] 28 Cr App R.
 43

Unfavourable and Hostile witnesses

Unfavourable witness

An unfavourable witness is one called by a party to prove a particular fact in issue or relevant
to the issue who fails to prove such, or proves an opposite fact. 8An unfavourable witness may
not be cross-examined by that party.9

In Ewer v Ambrose10 a witness called by the defendant to prove the existence of a

partnership, proved the contrary. It was held that the defendant could not discredit his own
witness, but could contradict him by calling other witnesses.

Hostile witnesses

A hostile witness is one who is not desirous of telling the truth at the instance of the party
calling him.11A hostile witness may, with the permission of the court, be cross-examined by
that party, for example by putting to him a previous statement that is inconsistent with his
present testimony.12

In Jeffrey Godfrey Munalula v The People13 the appellant was convicted of theft by public
servant and was sentenced to seven years' imprisonment with hard labour. The High Court
dismissed his appeal against conviction but substituted sentence of four years‘ imprisonment
with hard labour. He appealed to the Supreme Court against conviction, submitting inter alia
that the learned magistrate erred in treating a prosecution witness as hostile and rejecting, his
evidence, since that witness's alleged inconsistency had not been demonstrated.

Held:

(i) Where on an application to treat a witness as hostile, the court after sight of the
inconsistent statement, decides to grant the application, it should then direct itself not to place
any reliance on the contents of the statement and so record in the judgment.

(ii) Before, with leave of the court, adducing evidence to prove a witness‘s inconsistency, the
previous statement and its circumstances must be mentioned to the witness so that he may say
whether or not he has made such a statement.
8
Hatchard, J. &Ndulo, M. (1991). The Law of Evidence in Zambia: Case & Materials. Lusaka: Southern
African Institute for Policy and Research. p113.
9
Supra note 1 p567.
10
(1825) 3 B & C 746.
11
Supra note 4 p113.
12
Supra note 1 p265.
13
(1982) Z.R. 58 (S.C.).
 44

(iii) It is in the court's discretion to determine a witness's hostility in that he does not, give his
evidence fully and with desire to tell the truth; he is not hostile simply because his evidence
contradicts his proof or is unfavourable to the party calling him. Much is dependent on the
stature and extent of the contradiction; but, under common law the court may treat as hostile,
even a witness who has not made a prior inconsistent statement, on the basis of his
demeanour.

(iv) The inconsistent statement of a hostile witness is completely inadmissible as evidence of

the truth of the facts stated therein.

Topic 2 - Cross Examination

Cross-examination is the questioning of a witness by a party other than the one who called
him to testify. It may be to the issue, i.e. designed to elicit information favourable to the party
on whose behalf it is conducted and to cast doubt on the accuracy of evidence given against
that party; or to credit, i.e. designed to cast doubt upon the credibility of the witness. Leading
questions may be asked during cross-examination.14

Previous inconsistent statements

If a statement is inconsistent with the evidence given by the witness in the proceedings, its
primary use lies in discrediting the witness by showing the inconsistency of the various
accounts of the matters stated he has given. This is a particularly effective form of
impeachment.15

For obvious reasons, previous inconsistent statements are more often employed during cross-
examination for the purpose of attacking the credibility of a witness called by the opponent.
But they are sometimes used during examination in chief in the case of one‘s own witness if
that witness proves to be hostile.16

At common law, previous inconsistent statements were admissible only for the non-hearsay
purpose of attacking the credit of the witness, and were not admissible for the hearsay
purpose of proving the truth of the matters stated in them. For example, if the witness gave
evidence that the traffic light was green in the claimant‘s favour when he entered the
intersection, but was then impeached by reference to a previous statement (even one given
under oath) to the effect that the light was red, the previous statement was admissible to
14
Supra note 1 p147.
15
Supra note 2 p590.
16
Ibid.
 45

prove that the witness had contradicted himself and was unreliable as a witness, but it was not
evidence that the light was red when the claimant entered the intersection.17

In Simon Miyoba v The People18 the appellant was convicted of murder. The trial court in its
judgment made no mention of the discrepancy between the evidence in court of an important
prosecution witness and her statement to the police (which was before the court as part of the
summary committal proceedings). The appeal was allowed on the grounds of this and other
unsatisfactory features of the case.

Held:

(i) The general rule is that the contents of a statement made by a witness at another time,
whether on oath or otherwise, are not evidence as to the truth thereof; they are ammunition,
and only that, in a challenge of the truth of the evidence the witness has given at the trial.

(ii) It is necessary for the trial court to have before it formally the previous statement so that it
can compare it with the evidence given in court and assess for itself the seriousness of the
alleged discrepancies.

(iii) Neither the depositions taken at a preliminary inquiry nor statements to the police, which
in summary committal proceedings are furnished to the court and the defence, are formally
before the court and the court is not entitled to have regard to the contents of such depositions
or statements.

(iv) Unless the previous statement has been made part of the record in one or other of the
methods available, an appellate court has no basis on which to assess how serious the alleged
discrepancies are and what weight to attach to the evidence of the witness.

Bias

Any fact tending to suggest bias or partiality on the part of a witness may be cross-examined
to, and may be proved in rebuttal, if denied. Although essentially collateral, bias and
partiality often involve attempts on the part of the witness to affect the outcome of the case,
and therefore go beyond a mere issue of credit as a witness.19

17
Ibid.
18
(1977) Z.R. 218 (S.C.).
19
Supra note 2 p646.
 46

In R v Mendy20 the accused‘s husband, who was to be called as a witness on her behalf, was
waiting outside court (according to the usual practice in criminal cases) until his turn to give
evidence. He denied later, in cross-examination, that while outside court he had spoken to a
man who had been seen in the public gallery taking notes of other evidence. The implication
was that the witness was prepared to inform himself illicitly of what was going on in court,
prior to his being called, for the purpose of tailoring his evidence to the advantage of his
wife. The prosecution were allowed to rebut the denial.

Evidence of disability affecting reliability

Medical evidence may be called to show that a witness suffers from some disease, defect, or
abnormality of the mind, such as to affect the reliability of his evidence.21

In Toohey v Commissioner of Police of the Metropolis Toohey22 and two others were charged
with assault with intent to rob. Their defence was that the alleged victim had been drinking
and was behaving very strangely, and that while they were taking him home, he had become
hysterical and had imagined that he was going to be robbed. A police surgeon gave evidence
for the defence and said that when he examined the alleged victim there were no signs of
injury on him, that he smelt of alcohol, and that throughout the examination he was weeping
and hysterical. The appeal turned on the question whether the trial judge was correct in
refusing to allow the doctor to be asked his opinion of the part played by alcohol in the
victim‘s hysteria, and whether he was more prone to hysteria than a normal person. The
House of Lords held that the further questions should have been permitted, firstly because
they sought to elicit matters of direct relevance to the defence, and secondly, because the
evidence was admissible for the purpose of questioning the victim‘s reliability as a witness.

Proof of previous convictions

In terms of section 6 of English Criminal Procedure Act 1865, a witness if he either denies or
does not admit the fact of previous conviction he may be cross-examined to prove such fact.
However, Section 157 (vi) of our Criminal Procedure Code23 makes provision for an
important limitation to cross-examining a witness on his previous convictions.

20
(1976) 64 Cr App R 4.
21
Supra note 2 p650.
22
[1965] AC 595.
23
Chapter 88 of the Laws of Zambia.
 47

Topic 3 - Re-examination

Re-examination is the questioning of a witness by the party who originally called him to
testify, following the cross-examination of the witness by the opposite party. Leading
questions may not be asked in re-examination. Re-examination must be confined to matters
arising out of the cross-examination; new matters may only be introduced with the
permission of the court.24

In Prince v Samo25a witness for the plaintiff was cross-examined about part of a hearsay
statement, which would have been wholly inadmissible in chief, the plaintiff was entitled to
re-examine on any matter arising from the portion of the statement referred to in cross-
examination, but was not entitled to elicit any other portion. The re-examiner may deal with
all matters relevant to those raised in cross-examination, even if not dealt with expressly by
the cross-examiner.

Furthermore, in Joseph Knox Simwanza v The People26 it was stated that section 149 of the
Criminal Procedure Code allows a court may call or recall a witness to clarify an issue which
is crucial to the just decision of the case and which it is in the interests of justice to clarify.

Study Questions

1. In an assault trial, a witness in cross examination is asked: ―what did you do when the
accused punched and kicked you?‖ The State Advocate rises to object to the question as
being a leading one. The Court sustains the objection. Was this correct?

2. In what circumstances are leading questions allowed in examination in chief?

3. Of what significance is a witness‘s inconsistent previous statement in both examination in

chief and cross examination?

24
Supra note 1 p460.
25
(1838) 7 Ad & El 627.
26
(1985) Z.R. 15 (S.C.).
 48

Unit 8: Corroboration
Introduction

Corroboration is independent evidence that supports or confirms the accuracy of some other
evidence "in a material particular".1 Generally, Zambian law does not always require
corroboration and any fact in most cases may be proved by a single item of credible evidence.

Corroboration can either be required as a strict matter of law without which the proposed
evidence cannot be accepted. Cases in which corroboration remains mandatory include:
perjury, procuration, affiliation proceedings etc.

Where corroboration is not required as a matter of strict law, proposed evidence may be
accepted without any corroboration. This is often termed as corroboration required only as a
matter of practice.

Where corroboration is required only as a matter of practice, there is usually an obligation on

the court to warn itself of the dangers of acting on uncorroborated evidence.

Cases in which corroboration is only required as a matter of practice include evidence of

accomplices and of complainants in cases of sexual offences.

The two essential requirements of corroboration

1. Corroboration must come from an independent source. This requirement is neatly

illustrated by the following case.

In R v Whitehead2 the accused was charged with having unlawful intercourse with a girl
under 16. The girl mentioned the incident for the first time weeks later when she was
pregnant. Lord Hewart CJ rejected the argument that her conversation could amount to
corroboration saying: ―the girl cannot corroborate herself, otherwise it is only necessary for
her to repeat her story some twenty-five times to get twenty-five corroborations of it."

2. Corroboration must implicate the defendant in a ―material particular‖. ―Material particular‖

simply means a material fact, that is, ―a fact which in the circumstances of the case and the
issues raised in it is material to the guilt or innocence of the accused of the offence charged.‖3

1
R v Baskerville [1916] 2 KB 658.
2
[1929] 1 KB 99.
3
May, R. (1990). Criminal Evidence. London: Sweet and Maxwell. p330.
 49

Objectives

At the end of this Unit, the student should be able to demonstrate understanding on:

 What is meant by corroboration?

 Instances in which corroboration is required as a matter of law.

 And when it is only required as a matter of practice.

Topic 1 - Corroboration required by statute

The following are some of the areas of law in which corroboration is required as a matter of
law.

1. 1 Perjury

Perjury is the offence of deliberately giving false material evidence. Section 107 of the Penal
Code Act4 makes provision for evidence on charge of perjury. It enacts that: "A person
cannot be convicted of committing perjury or of subordination of perjury solely upon the
evidence of one witness as to the falsity of any statement alleged to be false." This entails that
the evidence of a witness in a perjury requires corroboration.

1.2 Procuration

Section 140 of the Penal Code Act5 provides for the offence of procuring a child or other
person for defilement, pornography, prostitution, etc. The evidence of a witness in a case of
procuration requires corroboration. ―...no person shall be convicted of an offence under this
section upon the evidence of one witness only, unless such witness be corroborated in some
material particular by evidence implicating the accused.‖

1.3 Children below 14 years

Section 122 (b) of the Juveniles Act6 requires that evidence of a child below the age of 14
years must be corroborated:

"where evidence admitted by virtue of this section is given on behalf of the prosecution, the
accused shall not be liable to be convicted of the offence unless that evidence is corroborated
by some other material evidence in support thereof implicating the accused."

4
Chapter 87 of the Laws of Zambia.
5
Ibid.
6
Chapter 53 of the Laws of Zambia.
 50

It would seem the need for corroboration is not required where such a child gives evidence on
behalf of the defence.

1.4 Affiliation

Under section 6 (2) of the Affiliation and Maintenance of Children Act, 7 an application for an
affiliation order which is an order declaring a man to be the father of a child identified in the
order, requires corroboration.

"The court shall not make an affiliation order unless the evidence of the mother is
corroborated in some material particular by other evidence."

Topic 2 - Cases where corroboration warning is required

1.1 Accomplices

It is the duty the court to warn itself that although it may convict on the evidence of an
accomplice, it is dangerous to do so unless it is corroborated.8

In Ivor Ndakala v The People9 the appellant and a co-accused were convicted of attempted
store breaking. They were found by the police, seated on an iron bar, near the store, in the
early hours of the morning. According to the respondent, policeman, the lock of the store had
disappeared and the two accused had confessed to attempted store breaking, but according to
the two, they were on their way to the city when they were apprehended by armed plain
clothes policemen.

It was pointed out, during the appeal, that the evidence of the police officer and complainant
were conflicting as to whether or not the lock on that store had been removed, neither were
the appellant and the co-accused found breaking into the premises. Further the magistrate had
permitted evidence of confessions of the two accused without their consent.

It was held (among other things) that when an accused person gives evidence against his co-
accused it is desirable that the court should, where such evidence is uncorroborated, warn
itself of the danger of convicting thereon.

7
Chapter 64 of the Laws of Zambia.
8
Hatchard, J. &Ndulo, M. (1991). The Law of Evidence in Zambia: Case & Materials. Lusaka: Southern African
Institute for Policy and Research. p130.
9
(1980) Z.R. 180 (H.C.).
 51

Furthermore, in Machobane v The People10 the appellant was convicted in the High Court of
the offence of stock theft. The material evidence was based on the testimony of the
appellant's brother in whose kraal were found cattle which belonged to the complainant.
Appellant appealed against conviction and sentence.

It was held (among other things) that:

(i) Where a witness is found in possession of stolen property he must be regarded as an

accomplice unless, on the whole of the evidence, the court finds as a fact that he is not an
accomplice and in the absence of such finding such witness will be assumed to be an
accomplice in considering an appeal.

(ii) While a conviction on the uncorroborated evidence of an accomplice is competent as a

strict matter of law, the danger of such conviction is a rule of practice which has become
virtually equivalent to a rule of law, and an accused should not be convicted on the
uncorroborated testimony of a witness with a possible interest unless there are some special
and compelling grounds.

1.2 Children below 14 years

Formerly, a child below 14 years could either give sworn evidence or unsworn evidence. In
either case this was after the court subjected the child to a mini trial to determine its
intelligence and appreciation of being truthful.

Where a child gave sworn evidence on behalf of the prosecution, corroboration of its
evidence was only required as a matter of practice. That is to say, its evidence could be
accepted as accurate even if not corroborated. The court was however only required to warn
itself of the danger of acting on a child's uncorroborated evidence. Failure to do so generally
rendered the evidence of the child inadmissible.11

Where a child gave unsworn evidence, corroboration of its evidence was mandatory. That is
to say, the child's evidence could not be accepted unless it was confirmed by some other
independent evidence.

10
(1972) Z.R. 101 (C.A.).
11
See: Chisha v the People (1980) ZR 36.
 52

Under current Zambian law, a child under the age of 14 can longer give unsworn evidence.
However, the requirement for corroboration (when such evidence is given on behalf of the
prosecution) remains in the black letter of the law.12

A question that arises now is: What type of corroboration is this that is required. Is it as a
matter of strict law (mandatory) or a matter of practice (not mandatory but a mere warning
would suffice)?

It would seem corroboration as a matter of practice arising from the sworn evidence of a child
below 14 years given on behalf of the prosecution has been abolished. Such evidence now
requires corroboration as a matter of law.

1.3 Sexual Offence

It is a well established rule of law that in sexual cases judges are required to warn themselves
of the dangers of convicting on the uncorroborated evidence of the complaint. There are a
number of reasons for this. First, complainants are motivated by spite, sexual frustration or
unpredictable emotional responses. Second, an allegation concerning the commission of a
sexual offence is easily made but difficult to defend. Offences such indecent assault often
leaves no visible traces. In rape cases not only the alleged act of sexual intercourse by the
accused but also the question of consent by the complainant sometimes depends entirely upon
the word of the victim as against that of the accused.13

In Ackson Zimba v The People14 the appellant was convicted of rape. On appeal the court
considered whether the fact that the complainant was crying when she was seen by the
independent witness, could amount to corroboration

Held: It is necessary for the trial court to warn itself that evidence of distress at the time of
the making of the complaint may not be enough to amount to corroboration as it may well be
simulated.

In Nsofu v The People15 it was stated that the corroboration required in sexual offences is on
(1) the alleged sexual offence and (2) the identity of the accused

12
See: Section 122 of the Juveniles Act as amended by Act No. 3 2011.
13
Supra note p149.
14
(1980) Z.R. 259 (S.C.).
15
(1973) Z.R. 287 (S.C.).
 53

Study Questions

1. Chileshe is charged and convicted of defilement of a girl below the age of 16. The only
evidence upon which he was convicted was the unsworn evidence of the prosecutrix. The
Court warned itself on the danger of acting on the uncorroborated evidence. Chileshe appeals
against both sentence and conviction. Will he succeed?

2. With the aid of suitable examples, discuss the circumstances in which corroboration is
mandatory.

3. Where a court, without warning itself, acts on uncorroborated evidence in a case in which
corroboration is required as a matter of practice, the final decision is in all cases fatally
defective. Do you agree with the foregoing proposition?

4. In Machipisha Kombe v The People16 the Supreme Court stated that:

"...In criminal cases of a sexual nature, such as rape and defilement, corroboration is required
as a matter of law before there can be a conviction..."

Analyse the correctness or otherwise of the above extract of the judgment.

16
S.C.Z Judgment No. 27 of 2009.
 54

Unit 9: Evidence of Character

Introduction

Character refers to the general reputation of a party or witness. In criminal cases the accused
may call evidence of his good character or give evidence to show the bad character of the
witnesses for the prosecution. If he does so, the prosecution may call evidence in rebuttal, but
any such evidence must be limited to evidence of reputation and not include opinions about
the accused's disposition. In civil cases the reputation of a party is not admissible unless it is
directly in issue, as it may be in an action for defamation. Evidence of the reputation for
truthfulness of a witness may be given in both civil and criminal cases.1

Evidence about character may be relevant in either a civil or criminal trial in two ways. First,
it may be relevant to an issue. For example, in a criminal trial for theft it would be relevant to
show that the defendant had a reputation for honesty and had never been convicted before of
any criminal offence. The purpose of proving this would be to try to establish that the
defendant was not a person likely to commit theft, and that the allegation was therefore likely
to be untrue. Evidence of good character could similarly be called for a plaintiff in a civil
action for defamation where justification had been pleaded as a defence.2

Secondly, evidence of character may be relevant to credibility. The theory – a relic from
earlier centuries – remains that a conviction for any offence is, in principle, relevant to
credibility because of what it is supposed to reveal about the moral character of the person
testifying. Subject to some exceptions, any witness testifying in any case may be cross-
examined about his bad character.3

Objectives

 At the end of this Unit, the student should be able to demonstrate understanding on
when a witness or a party may be examined on their bad character in both civil and
criminal matters.

Topic 1 - Good character

The defence will wish, where possible, to give evidence of their client‘s good character in
order to establish the improbability of his having committed the alleged offence. But it is not

1
Law, J. (Ed.). (2009). Oxford Dictionary of Law. (7th Ed.). London: Oxford University Press. p87.
2
Allen, C. (2001). Practical Guide to Evidence. (2nd Ed.). Cavendish: Cavendish Publishing Limited. p275.
3
Ibid.
 55

always appreciated that there are limitations on the sort of evidence that can be adduced for
this purpose.4

The nature of the evidence

The rule is that only evidence of general reputation is admissible as evidence of good
character; evidence of the opinions of specific persons, or evidence of specific acts performed
by the accused, is inadmissible.5 This rule was laid down in R v Rowton6 In that case,
evidence had been called of the defendant‘s good character and the prosecution had been
allowed to call evidence to rebut this by proving that the accused was in fact of bad character.
The witness who was called for this purpose was asked what was the accused‘s general
character for decency and morality. The answer was as follows: ―I know nothing of the
neighbourhood‘s opinion, because I was only a boy at school when I knew him; but my
opinion, and the opinion of my brothers who were pupils of his, is that his character is that of
a man capable of the grossest indecency and the most flagrant immorality.‖

A majority of the Court for Crown Cases Reserved held that this testimony should not have
been admitted. These points emerge from the majority judgments:

(a) Character evidence is confined to evidence of general reputation; the accused may not
give evidence of particular facts for the purpose of showing that he was not the sort of person
to commit the offence charged.

(b) It is quite true that character evidence is most cogent when accompanied by evidence
showing that the witness has had opportunities of acquiring information beyond what the
man‘s neighbours in general would have acquired. In practice, the admission of such
evidence is often carried beyond the letter of the law in the accused‘s favour.

(c) Evidence of bad character called to rebut evidence of good character is subject to the same
restrictions.

In this case, the witness had disclaimed all knowledge of the defendant‘s general reputation.
His answer was therefore inadmissible.

4
Ibid., p277.
5
Ibid., p277-8.
6
(1865) Le&Ca 520.
 56

Although defendants may be allowed to call in aid their good character in their defence, it
would seem they are not entitled as of right to do so. Thus, in R v Redgrave7 the defendant
was charged with an offence involving homosexual activity in a public lavatory. As part of
his defence he wished to adduce evidence, including love letters, Valentine cards and
photographs, to show that he had been very actively involved in relationships with women.
The trial judge held this evidence inadmissible. The defendant was convicted and appealed.
Lawton LJ emphasised, relying on R v Rowton,8that it was not open to a defendant to call
evidence of particular facts to show that he had a disposition that made his commission of the
offence unlikely.

Counsel for the appellant had brought to the court‘s attention the fact that defendants accused
of homosexual offences were often allowed in practice to say that they were happily married
and having a normal sexual relationship with their wives. Lawton LJ recognised this practice,
but said that it was ‗an indulgence on the part of the court‘. Defendants did not have the right
to give such evidence.

Good character could have a double function: not only may it make it less likely that the
defendant had done what the prosecution alleged, but it may also mean that he was a more
credible witness than someone who was not of good character.9

In R v Vye10 the court recognised two ‗limbs‘ in any direction about good character: the first
limb dealt with the relevance of good character to credibility, and the second with the
relevance of good character to the question whether the defendant was likely to have behaved
as alleged by the prosecution.

Topic 2 - Bad Character

Where the defendant is of bad character, the prosecution may be able to introduce this as
similar fact evidence. In these cases the evidence will be adduced as part of the prosecution
case, and the question of admissibility will not be affected by the decision of the defendant to
testify or remain silent. But suppose similar fact evidence is not admissible. Evidence of the
defendant‘s bad character may still be adduced if he puts his own character in issue by the
way in which the defence is run. Two situations must be distinguished.11 Where the accused

7
(1981) 74 Cr App R 10.
8
Supra note 6.
9
Supra note 2 p279.
10
(1993) 97 Cr App R 134.
11
Supra note 2 p282.
 57

himself testifies, the Criminal Procedure Code Act12 applies. But where he does not, even
though other defence witnesses may have testified, the position is governed by common
law.13

The position at common law

Where a defendant does not give evidence, but puts his character in issue, either by calling
evidence of his own good character or by cross-examining witnesses for the prosecution to
that effect, evidence in rebuttal can be called by the prosecution to show that the defendant is
in fact of bad character. But if the defendant merely attacks the witnesses for the prosecution
in cross-examination in an attempt to show that they are of bad character, and so not to be
believed, he has not put his own character in issue, and evidence of his bad character cannot
then be called.14

In R v Butterwasser15the defence, in order to impeach the credibility of prosecution

witnesses, who were also the victims, asked questions which tended to show their bad
character. Prosecution contended that this was sufficient to put the character of accused in
issue, which then grants the prosecution the opportunity to adduce evidence as to the bad
character of the accused. To this end, prosecution called a police officer as witness, who read
out a list of all charges the accused had previously been accused of. The Court held that
producing evidence to show bad character of the witness does not put the character of the
accused in issue.

The Court went further to state in obiter that: ―It is, of course, permissible, where a prisoner
takes advantage of the Criminal Evidence Act 1898 [a statute similar to the Zambian
Criminal Procedure Code], which made prisoners competent witnesses on their trial in all
cases, and goes into the witness box, he may then, if he has attacked the witness for the
prosecution, be cross-examined with regard to convictions and matters of character and I
have no doubt that, if he is cross-examined a conviction is put to him and he denied it, the
provision of Criminal Procedure Act 1865, s 6 [also similar to the Zambian Criminal
Procedure Code] would apply and the conviction could be proved against him...‖

12
Chapter 88 of the Laws of Zambia.
13
Supra note 2 p282.
14
Ibid., p282.
15
[1948] KB 4.
 58

The position under statute

The extract above provides guidance on the procedure to be taken when the accused or his
Counsel takes advantage of the procedure under the Criminal Procedure Code Act. The
relevant provisions of the Act enact as follows:

Section 157 (v)-(vi) provides:

―(v) a person charged and being a witness in pursuance of this section may be asked any
question in cross-examination, notwithstanding that it would tend to criminate him as to the
offence charged;

(vi) a person charged and called as a witness, in pursuance of this section, shall not be asked,
and, if asked, shall not be required to answer, any question tending to show that he has
committed or been convicted of, or been charged with any offence other than that wherewith
he is then charged, or is of bad character, unless-

(a) the proof that he has committed or been convicted of such other offence is admissible
evidence to show that he is guilty of the offence wherewith he is then charged; or

(b) he has, personally or by his advocate, asked questions of the witnesses for the prosecution
with a view to establishing his own good character, or has given evidence of his own good
character, or the nature or conduct of the defence is such as to involve imputations on the
character of the complainant or the witnesses for the prosecution; or

(c) he has given evidence against any other person charged with the same offence.‖

In Melody Chibuye v The People16 the appellant was convicted of theft and sentenced to
eighteen months' imprisonment with hard labour. Under cross-examination the appellant was
asked questions which elicited the facts that during the two months preceding his trial he had
been in prison and that he had been released from prison only two days prior to his arrest in
connection with the present case, that he had previously been in gaol for theft, and a denial
that he was a habitual criminal. The appellant appealed against conviction.

Held:

16
(1970) Z.R. 28 (H.C.).
 59

(i) Under section 148 (f) of the Criminal Procedure Code [now section 157 (vi)] questions
relating to the accused's previous committals and convictions could only be admitted in
evidence where:

(i) it can be proved that his guilt in those offences show that he is guilty of the present
offences;

(ii) where the good character of the prosecution witness has been put in issue; and

(iii) where the accused wants to establish his good character.

(ii) It was wrong for the prosecutor to cross-examine the appellant as to his character since
the prejudicial effect of the evidence extracted outweighed its evidential value. The trial
magistrate ought to have refused the cross-examination or to have informed the appellant of
his right to refuse to answer those questions.

Topic 3 - Civil Cases

Character is not generally relevant in civil cases and is relatively rarely seen.17

Evidence of character in defamation cases

In defamation cases, character is a fact in issue, and so is admissible to the extent relevant
and material to a cause of action or defence in defamation.18

Actions for defamation, whether libel or slander, provide the most obvious example of the
importance of character evidence in civil cases. Yet defamation is not so much an example of
character evidence becoming relevant in a civil case; rather, it is a category sui generis. In
defamation cases, the character of the claimant, or at least some aspect of it, is a fact in issue.
The claimant alleges that the defendant has damaged his reputation by making a false
statement about him. The claimant must, therefore, prove what his reputation was before the
defendant‘s statement was made, and the extent to which it has changed as a result of the
statement. Therefore, to the extent called into question by the statements of case, the
claimant‘s reputation is a material question of fact to be decided by the tribunal of fact, and
evidence relevant to the claimant‘s reputation must be admitted accordingly.19

17
Glover, R. (Ed.). (2013). Murphy on Evidence. (13th Ed.). Oxford: Oxford University Press. p132.
18
Ibid.
19
Ibid.
 60

Although defamation actions constitute a category sui generis, so far as character evidence is
concerned, it does not follow that the character of a person cannot be a fact in issue for a
more limited purpose in other kinds of case.20 For example, in Hurst v Evans21 the defence to
an action against an insurance company to recover the sum insured by the policy was that the
loss had been sustained because of the dishonesty of the plaintiff‘s servant. Because the
servant‘s character for honesty was in issue, it was held that evidence was admissible to
prove that he was a known associate of burglars and had entered the plaintiff‘s service on the
basis of a forged reference.

Good character

A defendant may not adduce evidence of his good character in response to allegations in a
civil case, even where the acts alleged are intentional.22

In Goodright d. Faro v Hicks23 the defendant to an action to set aside a will on the ground of
fraud sought to adduce evidence of his good character to suggest that it was not likely that he
had engaged in such a fraud. It was held that, in a civil case, the evidence was inadmissible

Bad character

Evidence of bad character is generally inadmissible in civil cases. But where evidence
suggestive of bad character is otherwise relevant and has probative value (for example,
evidence of similar facts) it may be admitted for that reason along the lines of the former
common rule in criminal cases.24

In Sattin v Union Bank25 a plaintiff who brought an action against a bank for losing a
diamond which he had deposited with them as security for an overdraft was held to be
entitled to adduce evidence of another occasion on which the bank had similarly lost
property which had been deposited.

20
Ibid., p133.
21
[1917] 1 KB 352.
22
Supra note 17 p132.
23
(1789) Bull NP 296.
24
Supra note 17 p132.
25
(1978) 122 SJ 367.
 61

Study Questions

1. Gondwe and Sitali are charged with indecent practices by members of the same sex.
During their trial, both sought to adduce evidence of their respective healthy heterosexual
relationships.

Discusses the relevance and admissibility of the said evidence.

2. How are the cases of R v Butterwasser26and Melody Chibuye v the People27 reconcilable?

3. To what extent is evidence of the plaintiff‘s good character relevant and admissible in
defamation?

26
Supra note 15.
27
Supra note 16.
 62

Unit 10: Similar fact Evidence

Introduction

―Similar fact evidence‖ is an expression that refers to evidence which one party wishes to
adduce as part of its case against another party, and which shows that other party to be guilty
of some other misconduct than that primarily alleged, or shows him to have some
discreditable propensity or interest. In the context of a criminal trial, which is where the
problem almost invariably arises, such evidence will usually be offered by the prosecution as
part of an argument to support the conclusion that the defendant committed the particular
offence with which he is charged. The expression ―similar fact evidence‖ was adopted
because the question of admissibility typically arose where an offence had been committed in
an idiosyncratic way, and where previous behaviour by the defendant showed a propensity to
indulge in similar behaviour. But the problem is not confined to such situations and can also
arise, for example, where articles of an incriminating nature are found in the defendant‘s
possession, or where the defendant admits interests, such as paedophilia, which may be
relevant to the charge alleged against him.1

Problems associated with similar fact evidence can also arise where a defendant is charged on
an indictment containing several counts. The normal rule in such a situation is that each count
has to be separately considered; the evidence on one count is inadmissible in relation to
another. But where similar fact features can be found among the counts, evidence on one
count may be admissible in relation to others.2

Objectives

At the end of this Unit, the student should be able to demonstrate understanding on:

 The relevance and admissibility of similar fact evidence.

 The student should be able to give examples of the circumstances in which reliance
can be made on similar facts evidence.

Topic 1 - General principles

Similar fact evidence may be presented as part of the prosecution case so long as it is relevant
to the question of guilt. By virtue of section 157 (v) and (v) of the Criminal Procedure Code,

1
Allen, C. (2001). Practical Guide to Evidence. (2nd Ed.). Cavendish: Cavendish Publishing Limited. p249.
2
Ibid.
 63

an accused may also be cross-examined about similar fact evidence since it is evidence
relevant to show he is guilty of the offence charged.3

In Makin v Attorney-Ggeneral for New South Wales4 a husband and wife tried for the murder
of a child whose body had been found buried on premises occupied by the defendants. The
trial judge allowed evidence to be given that other bodies of children had been found at
premises that had also been occupied by the defendants. In addition, he allowed evidence to
be given by women who had entrusted their children to the defendants‘ care and had never
seen those children again. A question arose on whether or not the trial judge was right to
admit these various items of evidence.

The Privy Council held that he had. In delivering its decision, Lord Herschell LC used words
that have been relied on, though in different ways, on innumerable occasions since then:

―It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that
the accused has been guilty of criminal acts other than those covered by the indictment, for
the purpose of leading to the conclusion that the accused is a person likely from his criminal
conduct or character to have committed the offence for which he is being tried. On the other
hand, the mere fact that the evidence adduced tends to shew the commission of other crimes
does not render it inadmissible if it be relevant to an issue before the jury, and it may be so
relevant if it bears upon the question whether the acts alleged to constitute the crime charged
in the indictment were designed or accidental, or to rebut a defence which would otherwise
be open to the accused.‖

Topic 2 - Admissibility of Similar fact Evidence

There is no exhaustive list of cases (categories) in which similar fact evidence is admissible.
This position finds support in DPP v Boardman5 in which Boardman was tried on three
counts. Offences were alleged to have been committed against boys at an English language
school of which he was headmaster. Count 1 charged the defendant with buggery of a boy
referred to as S on a day in October or November 1972. Count 2 charged him with inciting a
boy referred to as H to commit buggery with him on a day in January 1973. A conviction on a
third count in relation to another boy was subsequently quashed by the Court of Appeal.

3
Hatchard, J. &Ndulo, M. (1991). The Law of Evidence in Zambia: Case & Materials. Lusaka: Southern African
Institute for Policy and Research. p186.
4
[1894] AC 57.
5
[1975] AC 421.
 64

The trial judge ruled that the evidence on count 2 was similar fact evidence in relation to
count 1, and vice versa. Accordingly, he directed the jury that in deciding whether the
prosecution had proved that the defendant had buggered S, they were entitled to take into
account the evidence about inciting H to commit buggery; and in deciding whether the
defendant had incited H to commit buggery, they were entitled to take into account the
evidence about the buggery of S. The Court of Appeal upheld his decision. The case went to
the House of Lords.

The prosecution argued that the judge‘s ruling could be supported on the basis that the
evidence of S and H showed several striking similarities in the accused‘s behaviour. The
features relied on were the defendant‘s waking the boys in the middle of the night, taking
them to his sitting room, and requesting that the boys should penetrate him rather than vice
versa.

The House of Lords upheld this contention and the following points were made in the
speeches:

(a) There is no closed list of cases where similar fact evidence will be admissible.

(b) Ordinary principles apply where homosexual conduct is alleged. The idea, current earlier
in the 20th century, that there was a special rule allowing the admission of similar facts in
such cases was rejected as obsolete.

(c) The key to admissibility is whether the similar fact evidence has a really material bearing
on the issues to be decided. It may have, if between the two sets of facts (facts relating to the
count and the similar facts, which may or may not be the subject of another count), there is a
close or striking similarity, or an underlying unity.

(d) In each case, it is necessary to consider the weight of the similar fact evidence and the
prejudice that it may cause to the accused if it is admitted.

(e) Lord Hailsham emphasised that the similarities should be more than commonplace ones.
‗For instance, whilst it would certainly not be enough to identify the culprit in a series of
burglaries that he climbed in through a ground floor window, the fact that he left the same
humorous limerick on the walls of the sitting room, or an esoteric symbol written in lipstick
on the mirror, might well be enough.‘6

6
Ibid.
 65

(f) Admissibility is a question of law, not discretion, but the question is one of degree on the
facts.

1.1 Relevant for a further wholly independent reason

In R v Lovegrove7the appellant was indicted for unlawful killing, and for procuring the
miscarriage of a Mrs Purcell. At trial, evidence was given for the prosecution by the husband
of the deceased that, having obtained the appellant's name and address from a Mrs Type, he
went to the appellant's house and arranged with her for his wife to go there for an abortion.
His wife subsequently went to the appellants house and afterwards had a miscarriage and died
of septic abortion. The evidence of Mrs Type was tendered by the prosecution to show that
the appellant had performed a similar operation on her some months previously. The
evidence was objected to on the ground that the defence was a denial of the husband's
evidence and that the appellant had never seen the deceased woman. The evidence was
admitted, and the appellant was convicted.

On appeal it was held that the evidence was rightly admitted and the appeal was dismissed.

1.2 Negating Accident

In R v Smith8 in this case also known as the ‗brides in the bath‘ case, the defendant was
accused of one murder but evidence was offered of two more. The admission of this evidence
followed similarly from the improbability that three different women with whom he had gone
through a form of marriage, and who had made financial arrangements from which he would
benefit, had all drowned in the bath by accident shortly afterwards.

1.3 Negating ignorance or mistake

In R v Francis9 Francis was charged with attempting to obtain money from another person by
presenting a certain ring to be a diamond ring. He said that he had no knowledge that the ring
he was purporting to sell was not a diamond ring and was worthless. There was evidence that
he had previously approached other persons previously who had refused to give him money
for the ring when they realised that the ring was not a diamond ring. The question was
whether the Evidence of previous transaction with other persons where these people had
refused to give him money for the ring by realising that the ring was worthless relevant. The

7
(1921) 26 Cox CC 683.
8
(1915) 11 Cr App R, 229.
9
(1874) LR 2 CCR 278.
 66

court held that it was relevant to rebut the defence of lack of knowledge. The evidence of
Francis‘s experience with other people was relevant to rebut lack of knowledge.

The evidence of Francis with other persons was relevant here to rebut lack of knowledge.

1.4 Negating innocent association

In R v Ball10 a brother and sister were charged with incest. Evidence was given that they lived
together, sharing a bedroom and a bed. Evidence of earlier sexual relations between them at a
time when such relations did not constitute an offence was held admissible to prove ‗that they
had a guilty passion towards each other‘, and that the proper inference from their occupying
the same bed was that they were guilty as charged. As Lord Loreburn LC said, ‗Their passion
for each other was as much evidence as was their presence together in bed of the fact that
when they were there they had guilty relations with each other‘.

1.5 Proof of identity where evidence is circumstantial

In R v Barnes11 in October 1993, there were several assaults on women in the Tufnell Park
area of London. The defendant was charged on an indictment containing counts which related
to three of those attacks. It was the prosecution‘s case that the circumstances of the attacks
were strikingly similar, and three other incidents were also relied on as similar fact evidence.
The prosecution submitted that there was overwhelming evidence that all the attacks were the
work of the same man. They relied on the proximity in time and space of the attacks, the
description given by each victim of her assailant and the identical way in which the approach
was made in each case. Identification parades had been held and the complainants in respect
of the three counts had identified the defendant. The defence accepted that there was
sufficient striking similarity for similar fact evidence to be admissible. But an appeal against
conviction was based on an alleged misdirection by the judge in relation to identification. The
Appeal was dismissed.

1.6 Negating mistaken identity

In Thompson v R12 the defendant was charged with committing an act of gross indecency in a
public lavatory with two boys. The case for the prosecution was that the acts in question had
been committed on 16 March and the person who committed them had made an appointment
to see the boys again at the same place on 19 March. On the second occasion, members of the
10
[1911] AC 47.
11
[1995] 2 Cr App R 491.
12
[1918] AC 221.
 67

police kept watch with the boys. In due course the defendant arrived. After he had been
identified by the boys and arrested, he claimed to be the victim of mistaken identification.
Evidence was given at trial that, when arrested, the defendant had been in possession of
powder puffs, and that when his rooms were searched indecent photographs of boys had been
found. The House of Lords held that this evidence, showing the accused to be homosexual,
was admissible to support the boys‘ identification. If the boys‘ identifications had not been
accurate, it was an unbelievable coincidence that the man they had mistakenly identified had
also been a homosexual. Yet powder puffs and indecent photographs were relevant to
homosexual propensity rather than to homosexual activity.

Topic 3 - Use of similar fact evidence in civil matters

The position of similar fact evidence in civil matters is asserted by Lord Denning MR in the
case of Mood Music Publishing v De Wolfe Ltd13as follows:

―In civil cases the courts will admit evidence of similar facts if it is logically probative, that
is, if it is logically relevant in determining the matter which is in issue: provided that it is not
oppressive or unfair to the other side: and also that the side has fair notice of it and is able to
deal with it.‖

Topic 4 - Use of similar fact evidence by the defence

Although similar fact evidence is most likely to be relied on by prosecution, nothing bars the
defence from relying on similar facts evidence to buttress a defence.14

Study Questions

1. Hatembo is appearing before the Subordinate Court of the first class charged with stoke
theft. During the case for the prosecution, evidence of 18 earlier instances in which Hatembo
was suspected of theft-related offences (including 10 of stock theft) is proposed for admission
into evidence against Hatembo by the prosecution. You are the learned trial magistrate
presiding over the case. Hatembo is unrepresented by Counsel. Rule on the admissibility or
otherwise of the proposed evidence.

2. Chazanga is on trial for murder. The prosecution propose to adduce evidence of 4 earlier
offences of murder he was acquitted of. In each of those earlier offences, the victim was
marked on the forehead with a pentagram. The victim concerning whom Chazanga now

13
[1976] Ch 119.
14
Supra note 3 p199. See also: S v Letsoko and Others1964 (4) SA 768.
 68

stands charged with the murder of was also found with the same marking as the previous 4
cases. The prosecution proposes to adduce the earlier cases as similar fact evidence
implicating Chazanga in the present case. The defence object to this and submit that the
prejudicial effect of the proposed evidence far outweighs its probative value. You are the trial
judge presiding over the case. Give a well-reasoned ruling on the two conflicting positions
above.
 69

Unit 11: Privilege

Introduction

A privilege is a rule of law which permits a witness to refuse to answer a question, or a party
to refuse to produce certain materials.1 This Unit considers three main privileges recognised
by Zambian law. These are: Legal Professional privilege, statements made without prejudice
and the privilege against self-incrimination. Consideration will however also be made on
other areas such as journalism and communications between spouses where the law does not
recognise privilege in general terms and the possible qualifications in such areas.

Objectives

 At the end of this Unit, the student should be able to demonstrate understanding on
the main privileges recognised by Zambian law.

Topic 1 –Legal Professional privilege

A client cannot be compelled and his legal adviser will not be allowed without the consent of
his client to disclose communications or to produce documents passing between them in
professional confidence. This privilege extends to communications made by other persons on
behalf of the client to the legal adviser if obtained by the latter for the purpose of the
litigation or other business.

Legal professional privilege takes two forms:

(a) ‗Advice privilege‘—legal professional privilege for communications between lawyer and
client in the course of providing legal advice;

(b) Litigation privilege‘—for communications between lawyer and third parties where the
dominant purpose of the communication is that of litigation.2

In Waugh v British Railways Board3 the plaintiff‘s husband, an employee of the defendants,
was killed in a railway accident. In accordance with the defendant Board‘s usual practice a
report was made concerning the circumstances of the accident. This report was made partly
for the purpose of discovering whether such accidents could be avoided in the future and
partly to inform with Board‘s solicitor in case of litigation. The plaintiff sued the Board for

1
Glover, R. (Ed.). (2013). Murphy on Evidence. (13th Ed.). Oxford: Oxford University Press. p501.
2
Ibid., p516.
3
[1980] AC 521, HL.
 70

negligence and sought discovery of the report. Discovery was resisted by the Board on the
ground of legal professional privilege. The House of Lords held:

(i) that public interest in the administration of justice strongly required that a document such
as the internal inquiry report contained statements which would almost certainly be the best
evidence as to the cause of the accident and should be disclosed; and

(ii) that for that public interest to be overridden by a claim of privilege the purpose of
submission to the party‘s legal advisers in anticipation of litigation must be at least the
dominant purpose for which it was proposed.

The privilege will not arise if legal advice is sought in order to shield one from a crime or
some other wrong.

Thus, in R v Cox and Railton4 a solicitor was compelled to disclose what passed between the
prisoners and himself on an occasion when they called to consult him to draw a bill of sale
which was alleged to be fraudulent.

Legal professional privilege is absolute and potentially permanent, i.e., it does not end even
with the death of the client and continues indefinitely unless waived.5

Topic 2 - Statements made without prejudice

It is a matter of public interest that statements may be made ―without prejudice‖ in an attempt
to settle a dispute. Such statements cannot be put in evidence without the consent of both
parties; and where a party deploys materials which would not be admissible because it forms
part of without prejudice communication the other party is entitled to refer to the context of
the same communications in order to advance his own case on the merits.

In Walker v Wilsher6 Lord Esher MR said: ―The letters and the interview were without
prejudice, and the question is whether under such circumstances they could be considered in
order to determine whether there was good cause or not for depriving the plaintiff of costs. It
is, I think, a good rule to say that nothing which is written or said without prejudice should be
looked at without the consent of both parties, otherwise the whole object of the limitation
would be destroyed. I am, therefore, of opinion that the learned judge should not have taken
these matters into consideration.‖

4
(1884) 14 QBD 153.
5
Supra note 1 p516.
6
(1889) 23 QBD 335.
 71

In Lusaka West Development Company Limited, B.S.K. Chiti (Receiver), Zambia State
Insurance Corporation v Turnkey Properties Limited7 the Supreme Court stated as follows:

"As a general rule, therefore, without prejudice communication or correspondence is

inadmissible on grounds of public policy to protect genuine negotiations between the parties
with a view to reaching a settlement out of court. [...] However, it is quite clear that the issue
here did not really call for the disclosure of the correspondence complained of since it was
capable of being resolved without recourse to such correspondence, the starting point being
the consent summons signed by both sides and which document epitomised the agreement
reached out of the court..."

Whilst it is not mandatory that a letter be headed ―without prejudice‖, a statement to the
effect that it is without prejudice to the writer‘s rights will suffice.8 If the first letter in a series
is headed ―without prejudice‖ or words to that effect incorporated, it might mean the
privilege attaches to subsequent letters in the series.9

Topic 3 - Privilege against self-incrimination

The privilege against self-incrimination requires that no person is bound to answer a question,
if in the opinion of the judge it would tend to expose him to a criminal charge, penalty, or
criminal forfeiture. The judge must be satisfied (1) that the answer would tend to expose the
witness to the charge; and (2) that the risk is not merely remote or insubstantial.10

Goddard LJ in Blunt v Park Lane Hotel Ltd11 enunciated the rule as follows:

―The rule is that no one is bound to answer any question if the answer thereto would, in the
opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty
or [in a criminal case] forfeiture which the judge regards as reasonably likely to be preferred
or sued for.‖

Where an accused person chooses to give evidence in terms of section 157 of Criminal
Procedure Code Act12 he cannot invoke the privilege in respect of questions tending to
incriminate him as to the offence charged.13

7
S.C.Z. Judgment No. 1 of 1990.
8
Cheddar Valley Engineering Ltd. v Cheddlewood Homes Ltd. [1992] 1 WLR 820.
9
Paddock v Forrester (1842) 3 Man & Cr 903.
10
Supra note 1 p504.
11
[1942] 2 KB 253.
12
Chapter 88 of the Laws of Zambia.
 72

Topic 4 - Journalistic immunity

In British Steel Corporation v Granada Television Ltd14 the defendant had broadcast a TV
programme using material confidential to the plaintiff, who now sought disclosure of the
identity of the presumed thief.

Held: (Lord Salmon dissenting)

The courts have never recognised a public interest right of the media to protect their sources
where disclosure was necessary in the interests of justice. As to procedure, the courts could
order disclosure of a third party‘s name. The defendant here could not claim to have been
unaware of any wrongdoing by the person who delivered the documents, and this was not a
case where they would receive the limited protection from discovery available in defamation
cases.

Lord Wilberforce said: ‗there is a wide difference between what is interesting to the public
and what it is in the public interest to make known.‘

Under English law, section 10 of the Contempt of Act 1981 enables a person to refuse to
disclose the source of information contained in a publication for which he is responsible. It is
therefore possible for journalists to invoke that provision under English law. However, that
law is not applicable in Zambia and there exists no comparable local legislation.

Topic 5 - Communications between spouses

There is no rule which makes communications between husband and wife inadmissible on the
ground of privilege. Thus, in Rumping v DPP15 the mate of a Dutch ship was charged with
the murder of a woman at a port in Wales. The accused was arrested when the ship arrived in
Liverpool. He had given a letter in a closed envelope to a seaman for posting in a foreign
port. The seaman gave the letter to the captain who passed it to the police. The letter was
written by the accused to his wife and was tantamount to a confession of some grave crime. It
was tendered in evidence by the prosecution and after objection was admitted. The accused
was convicted. On appeal it was contended that the letter was inadmissible in evidence. Both
the Court of Appeal and the House of Lords rejected this contention.

13
Hatchard, J. &Ndulo, M. (1991). The Law of Evidence in Zambia: Case & Materials. Lusaka: Southern
African Institute for Policy and Research. p211.
14
[1981] AC 1096.
15
[1964] AC 814, HL.
 73

Study Questions

1. Lionel Chifundo sought legal advice from leading tax lawyers on whether or not a
particular tax avoidance scheme would be efficient. He now stands charged with tax evasion.
The Zambia Revenue Authority (ZRA) seek disclosure of the legal advice Chifundo sought.
Would the authority be entitled to do so? If the advice sought was on a tax evasion scheme,
would your answer be different?

2. Mr and Mrs Owens have had a troubled marriage and they both want out. Mrs Owens has
since petitioned for divorce. However, her lawyer has referred her to a marriage councillor
with a view of considering reconciliation with her husband. The couple later has two
meetings with the marriage councillor. They negotiate reconciliation but the whole process
collapses. The petition proceeds to be heard by the Court. During the presentation of his case,
Mr Owens seeks to adduce evidence of what was discussed with the marriage councillor. Mrs
Owens objects to this submitting that whatever was discussed with the marriage councillor
was ―without prejudice‖ to the rights of the parties. You are the learned trial judge presiding
over the matter. Rule on the objection raised by Mrs Owens.
 74

Unit 12: Public Policy or Public Interest Privilege (Immunity)

Introduction

Privileges are divided into two groups: public-interest privilege (public-interest immunity)
and private privilege. In the former, the state has always been able to claim public-interest
privilege in relation to secrets of the state and other matters whose confidentiality is essential
to the functioning of the public service. These include: state interests (security), police
informants, local government matters and parliamentary proceedings. It is now recognized
that a similar privilege may be claimed by private parties when some overriding public
interest is involved.1 Private privileges were considered in the previous Unit. The expression
―public interest immunity‖ is now preferred than the expression ―public interest privilege‖ as
unlike private privilege, public interest immunity cannot be waived by the parties. This
makes it more than just a mere privilege of the parties.

Objectives

At the end of this Unit, the student should be able to demonstrate understanding on:

 The main areas in which public interest immunity may be invoked.

 The student should also be familiar with the exceptions to some of the categories of
public interest immunity.

Topic 1 - State interests (security)

The state security covers matters that, if revealed, might threaten military operations or
diplomatic interests of the State and are absolutely shielded from revelation. The privilege
includes a prohibition on revelation of covert operations of intelligence agencies or their
future operational plans. The privilege belongs to the State, which is the only entity permitted
to assert or waive the privilege.2

In Duncan v Cammel, Laird & Co. Ltd3 the submarine, ‗Thetis‘, which had been built by the
respondents under contract with the Admiralty, was undergoing her submergence tests in
Liverpool Bay when she sank to the bottom owing to the flooding of her two foremost
compartments and failed to return to the surface, with the result that all who were in her,

1
Tapper, C. (2007). Cross and Tapper on Evidence. (11th Ed.).Oxford: Oxford University Press. p. 405-415
2
Jefferson, I.. (2009). Criminal Evidence. (9th Ed.). New York: Anderson Company. p. 376.
3
[1942] AC 624.
 75

except four survivors, were overwhelmed. Ninety-four men lost their lives. In an action
instituted by the appellants (representatives and dependants of those men) against the
respondents claiming damages for negligence, objection was taken to the production of
documents including the reports as to the condition of the ‗Thetis‘. The trial judge refused
inspection of the documents and his decision was unanimously confirmed by the Court of
Appeal but the appellants were given leave to appeal to the House of Lords. The House of
Lords held that documents otherwise relevant and liable to production must not be produced
if the public interest, in particular, state security required that they should be withheld.

Topic 2 – Police informants

As a general rule, an informant who provides police with information that the police use to
obtain a warrant of arrest or to foster an investigation may have his or her identity remain
confidential. Because confidential informants have long proved essential to various types of
law enforcement activities, a privilege has evolved for the protection of the identities of these
informants. The rule against disclosure of their identities recognizes that the informants serve
as an important resource in effective law enforcement. This privilege prompts citizen
involvement in alerting police to wrongdoing with the general promise that the citizen‘s
identity will remain undiscovered by criminal suspects.4

Thus, in Roviaro v United States5 it was stated that the purpose of the privilege is the
furtherance and protection of the public interest in effective law enforcement. The privilege
recognizes the obligation of citizens to communicate their knowledge of the commission of
crimes to law-enforcement officials and, by preserving their anonymity, encourages them to
perform that obligation. Stated another way, the immunity from disclosure of the identity of
police informers is claimed to protect the identity of the informer for his own safety and to
ensure that the supply of information in criminal cases does not dry up. 6 The origin of the
privilege has been traced to R v Hardy7 and the immunity covers not only the identity of the
informer but also the identification of premises used for police surveillance.

4
Supra note 2 p. 373.
5
(1959) U.S. LEXIS 1125.
6
Murphy, P. (2008). Murphy on Evidence. (10th Ed.). Oxford. Oxford University Press p. 418.
7
(1794) 24 St Tr 199.
 76

Similarly, in Daniel Chizoka Mbandangoma and the Attorney-General8 the plaintiff in a civil
action against the State applied that a witness for the defendant be ordered to disclose the
identity of a police informer on whose information the plaintiff was charged with theft by
public servant. The defendant objected on the ground that as a matter of public policy the
identity of a police informer is not required to be disclosed. It was held that the identity of
police informers must in the public interest be kept secret and is not required to be disclosed.

Further, in Mares v Beyfus9it was aptly asserted that: ―this rule as to public prosecutions was
founded on grounds of public policy, and if this prosecution was a public prosecution the rule
attaches; I think it was a public prosecution, and that the rule applies. I do not say that it is a
rule which can never be departed from; if upon the trial of a prisoner the judge should be of
opinion that the disclosure of the name of the informant is necessary or right in order to show
the prisoner's innocence, then one public policy is in conflict with another public policy, and
that which says that an innocent man is not to be condemned when his innocence can be
proved is the policy that must prevail. But except in that case, this rule of public policy is not
a matter of discretion; it is a rule of law, and as such should be applied by the judge at the
trial who should not treat it as a matter of discretion whether he should tell the witness to
answer or not.‖

However, there are two policies to be reconciled: the public policy that an innocent man is
not to be condemned when his innocence can be proved and the public policy that the identity
of the informer must be protected for his own safety and to prevent the supply of information
from drying up.10

The need for a fair trial, requires that any information which impinges on an issue of interest
to the defence, present and potential, such as to confirm an alibi or to buttress the defence that
the small amount of cannabis resin found in a criminal charge under the Narcotic Drugs And
Psychotropic Substances Act11 was planted on the accused must be disclosed otherwise the
convictions would be quashed.

Withholding ‗relevant materials‘, that is, material (statements) which undermine the
prosecution case or strengthen the case of the defendant, brings into focus Article 18(2)(c)
which provides for the right of an accused person to: ―be given adequate time and facilities

8
(1977) Z.R. 334 (H.C.).
9
(1890) 25 QB D. 494.
10
Supra note 6 p. 416.
11
Chapter 96 of the Laws of Zambia.
 77

for the preparation of his defence‖ and Article 18(2)(e) the right to: ―be afforded facilities to
examine in person or by his legal representative the witnesses called by the prosecution
before the court, and to obtain the attendance and carry out the examination of witnesses to
testify on his behalf before the court on the same conditions as those applying to witnesses
called by the prosecution‖12

Reconciling public interest immunity and fairness to the defendant remains a thorny problem
despite Lord Taylor CJ‘s guidelines in R v Keane13 that: ―First, it is for the prosecution to
put before the court only those documents which it regards as material but wishes to withhold
… Secondly, when the court is [seized] of the material, the judge has to perform the
balancing exercise by having regard on the one hand to the weight of public interest in non-
disclosure. On the other hand, he must consider the importance of the documents to the issues
of defence, present and potential, so far as they have disclosed to him or he can foresee
them‖. Further, Lord Taylor said: ―Having examined the materials which the Crown put
before us, we are wholly satisfied of two matters. First, there was undoubtedly a public
interest in not disclosing the material withheld by the Crown. Second, that material had it
been disclosed would not have assisted the defence at all.‖

Exception to the general position of public interest immunity of police informers

Identity of informer required to prove accused‘s innocence (innocence at stake)

There is only one exception upon which the public interest immunity accorded to police
informers may be abridged. The exception is only to be invoked when the innocence of the
accused is at stake. Thus, if upon the trial of an accused person the judge should be of opinion
that the disclosure of the name of the informant is necessary or right in order to show the
innocence of the accused, then one public policy is in conflict with another public policy, and
that which says that an innocent man is not to be condemned when his innocence can be
proved is the policy that must prevail.14

In order to raise the ―innocence at stake‖ exception to informer privilege, there must be a
basis on the evidence for concluding that disclosure of the informer‘s identity is necessary to
demonstrate the innocence of the accused. Thus, in R v Chiarantano15 the possibility that the
information provided by the informer regarding the arrival at a residence of drugs later found

12
Chapter 1 of the Laws of Zambia.
13
[1994] 2 All ER 479 .
14
R v Leipert(1997) 122 S.C.C.
15
[1990] O.J. No. 2603 (C.A.).
 78

in the possession of the accused might conflict with the evidence of the accused was held not
to raise a basis for disclosure pursuant to the ―innocence at stake‖ exception. The court held
that the usefulness of the information was speculative and that mere speculation that the
information might assist the defence is insufficient. If speculation sufficed to remove the
privilege, little if anything would be left of the protection which the privilege purports to
accord.

In R v Leipert16 it was stated that: ―on the other hand, circumstances may arise where the
evidence establishes a basis for the exception, as where the informer is a material witness to
the crime or acted as an agent provocateur.‖ The immediate foregoing are the circumstances
that may be used to demonstrate the existence of the ―innocence at stake‖ exception. The
aforementioned instances are considered below.

Where the informer participated in the crime

Some police informants could merely have been observers, while other informants may have
been materially involved in the crime to the point at which they may have to be witnesses in
criminal trials. The informant who merely observed criminal activity and informed police
will rarely have his or her identity revealed while an informant who had an active and strong
role in the crime may have his or her identity revealed as essential to a fair trial.17

Thus, in Roviaro v United States18 it was held that the prosecutor was not privileged to
withhold the name of the informant when the informant played a direct and prominent part at
the crime scene as the sole participant with the accused, Roviaro, in the very offence for
which the latter was being tried. The informant had taken a material part in bringing about
petitioner‘s possession of the drugs and he had been present with petitioner at the occurrence
of the alleged crime and at the arrest. The usual burden rests with the accused to demonstrate
that the informant possessed a greater degree of involvement in the crime.

Where the informer testifies at trial

If the informant later testifies against the accused at trial, the identity of the informant must
be disclosed to the defendant.19 This is so as to satisfy the constitutional requirement for the

16
(1997) 122 S.C.C.
17
Supra note 2 p. 374.
18
Supra note 5.
19
Supra note 2 p. 374
 79

accused to examine in person or by his legal representative the witnesses called by the
prosecution before the court.20

In order to obtain the identity of police informant, the accused bears the burden of
demonstrating the need for disclosure. In United States v Harrison21the case dealt with
distributing controlled substances, the accused contended that he needed to know the identity
of the police informant to whom he had allegedly sold drugs. Because the informant was the
sole witness to the alleged transaction and the defendant alleged that he had no knowledge of
the crime whatsoever, the identity of the informant was crucial to the construction of a
defence. According to the court, when the accused‘s demand was balanced against the public
interest to encourage future informants and the chance of harm to the particular informant,
the identity of the informant must be disclosed. In this case, the fact that the informant was a
material and only witness to the alleged crime necessitated the disclosure of his identity.

Statutory recognition of informer privilege

In addition to the common law‘s recognition of public interest immunity with regards to
police informers, there is a statutory protection of the identity of informers of other law
enforcement agencies. Section 69(6) of the Anti-corruption Act22 prescribes that: ―... a
witness shall not be obliged to — (a) disclose the identity or address of an informer or person
assisting or who assisted the Commission in an investigation into an alleged or suspected
offence under this Act; or (b) state any matter which may disclose the identity or address of
an informer or person referred to in paragraph (a).‖

Further, section 69(7) of the same Act provides that: ―Where any document which is in
evidence or liable to inspection in any civil or criminal proceeding under this Act contains
any entry or passage in which an informer is named or described or which might lead to the
person‘s discovery, the court before which the proceedings is held shall cause such entry or
passage to be concealed from view or to be obliterated in such a manner as, in the opinion of
the court, shall not disclose the identity of the informer.‖

20
Supra note 12Article 18(2)(e).
21
(2005) U.S. Dist. LEXIS 6195.
22
Anti-corruption Act No. 3 of 2012.
 80

In Solicitor-General of Canada v Royal Commission of Inquiry (Ontario Health Records),23 it

was asserted that the public interest privilege belongs to the state. However, the state cannot,
without the informer‘s consent, waive the privilege either expressly or by implication by not
raising it. This position was stated in Bisaillon v Keable24, and in that sense, it also belongs to
the informer. This follows from the purpose of the privilege, being the protection of those
who provide information to the police and the encouragement of others to do the same. This
is the second reason why the police and courts do not have discretion to relieve against the
privilege.

Topic 3 –Local government

Public interest immunity is granted, and granted only, in the public interest. If no public
interest is asserted, but only an interest of a local authority, it will not be accepted as alone
constituting a valid ground for immunity. It often happens, however, that a matter of national
concern raising a clear public interest is entrusted to a local authority. In such a case, it is not
conclusive against the recognition of immunity from disclosure that the claim is made by the
local authority, even though it may be unsupported by an affidavit from a minister. Still less
is it conclusive in favour of immunity that the question arises in wardship proceedings.25
Thus in D v National Society for the Prevention of Cruelty to Children26 the plaintiff claimed
damages for injuries caused to her health by making false allegations that she maltreated her
child. The society sought an order for excusing it from disclosing the identity of the informer.
Lord Edmund-Davies held that where (i) a confidential relationship existed (other than that of
a lawyer and client) and (ii) disclosure would be in breach of an ethical and social value
involving public interest, the court had a discretion to uphold a refusal to disclose relevant
evidence.

Topic 4 - Parliamentary proceedings

It has been settled that proceedings in Parliament ought not to be questioned in any court. At
common law, this privilege cannot be waived either by an individual member, or by the
House. In Church of Scientology v Johnson-Smith27 this was interpreted broadly to exclude
the use of such reports in evidence to impugn the motives and intentions of members in any
proceedings. It seems to be the case that the judge has the duty, as in other public policy
23
[1981] 2 S.C.R. 494.
24
[1983] 2 S.C.R. 60.
25
Supra note 1 p. 416.
26
[1978] AC 171.
27
[1972] 23 QB.
 81

situations, to intervene on his own initiative if the point is not taken by the parties. In an
extreme case in which it would be impossible to adjudicate on a claim without access to such
excluded material, the court may stay an action, but it is normally immaterial that the claim is
brought by a member of body concerned, and the material required by way of defence.28

Study Questions

1. Distinguish between public interest immunity and private privilege. Give at least three
examples of each.

2. Chief Constable Da Silva borrowed money from a successful businessman. He had no

intention of repaying the borrowed money. He later hired some people to plant some
prohibited drugs on the businessman and instructed them to notify him as soon as they
succeeded. The hired people succeed on their hired task and promptly notified the Chief
Constable. He then instructed his juniors to effect a search and arrest on the businessman as
he was informed that he was in possession of prohibited drugs. The junior officers waste no
time and pounce on the businessman. They inform him that they are there to effect a search
on him as they were informed that he was in possession of prohibited drugs. Without any
resistance as he had nothing to hide, he allowed the officers to conduct a search on him. The
search was conducted and the planted drugs were found on him. He is arrested and charged
with being in possession of prohibited drugs. At trial, he pleads not guilty and contends that
he was framed. He demands the identity of the people who informed the police about his
being in possession of prohibited drugs. The State object to this. They submit that it is well
established that the identity of police informers is protected by public interest immunity.
Should this objection stand?

28
Supra note 1 p. 417.
 82

Unit 13: Opinion evidence

Introduction

Opinion evidence is evidence of the opinions or beliefs of a witness, as opposed to evidence

of facts about which he can give admissible evidence. At common law, opinion evidence is in
general inadmissible but this rule is subject to many exceptions. Thus a non-expert witness
may testify as to age, speed of vehicles, or identity. Expert witnesses (e.g. medical doctors)
may give their opinions on any matter falling within their expertise. At common law, a
witness could not give his opinion on an ultimate issue (i.e. the question that the court had to
decide).1

Objectives

At the end of this Unit, the student should be able to demonstrate understanding on:

 Factors to consider before accepting both non-expert and expert opinion evidence.

 The student should also be able to provide examples of matters that may require the
court to rely on expert opinion evidence.

Topic 1 – Non-expert witnesses

Non-expert opinion evidence may be received on matters within the competence and
experience of lay persons generally.2

In Mwelwa v The People3 The appellant was convicted in the High Court of causing death by
dangerous driving. The appellant was the driver of a truck and was carrying seven
passengers, of whom some were in the cab with him and others in the back. During the
journey the appellant stopped at a bar and stated he was going to drink some beer; thereafter
the journey continued and at a bend the truck left the road and after travelling a further 292
feet, including crossing a side road, overturned. One of the passengers died as a result of
injuries received in the accident.

The trial judge found (1) that the appellant was driving too fast to control his vehicle, (2) that
he had taken more beer than he should have done and was not as sober as he should have
been, and (3) that he disregarded a road warning sign. Counsel for the appellant advanced
two grounds for appeal: first, that the witnesses who gave evidence as to the amount of
1
Law, J. (Ed.). (2009). Oxford Dictionary of Law. (7th Ed.). London: Oxford University Press. p385.
2
Glover, R. (Ed.). (2013). Murphy on Evidence. (13th Ed.). Oxford: Oxford University Press. p404.
3
(1975) Z.R. 166 (S.C.).
 83

alcohol did not accompany the appellant to the bar and therefore were giving opinion
evidence as to his sobriety; second, that the witnesses were equally giving opinion evidence
as to speed. In respect of both aspects counsel submitted that the evidence in question being
opinion evidence was not admissible and should not have been relied upon. Counsel
submitted also that the accident may have happened as a result of some mechanical defect or
because of a skid.

The appellant was sentenced to three years‘ imprisonment with hard labour and his driving
licence was cancelled. He appealed against both conviction and sentence.

Held (among other things):

(i) Witnesses who do not qualify as experts should not be permitted to give their opinion on
the very issues which the court is called upon to decide; but in order to arrive at its decision
the court is entitled to rely on factual evidence given by non-expert witnesses.

(ii) The witnesses in question did not give their opinion as to the appellant's condition but
gave factual evidence of what they had seen and heard and smelt; individual witnesses said
variously that the appellant staggered, that he was talking loudly and that he smelt of beer,
and this was factual evidence from which the court was entitled to draw a conclusion.

(iii) On the factual evidence before him the trial judge's conclusion that the appellant was
driving too fast to negotiate the corner was the only possible conclusion to which he could
have come.

The Appeal was dismissed.

Similarly, in Blake v The People4 the appellant was convicted of driving a motor vehicle
whilst under the influence of intoxicating liquor or drugs to such an extent as to be incapable
of having proper control of his vehicle and of failing to submit to a medical examination. In
the absence of any medical evidence, the trial magistrate relied on the evidence of two police
officers concerning their factual observations, and convicted the accused on the first count.

It was held (among other things) that:

(ii) If medical evidence is not available as to the drunken state of the accused, the court may
rely on other evidence bearing on this issue.

4
(1973) Z.R. 157 (H.C.).
 84

(iii) Laymen are not competent to give their opinions in court as to the effect on the accused's
ability to drive or the consumption of alcohol by him.

(iv) In the absence of medical evidence the trial magistrate rightly relied on the police
officers' evidence which fully justified the conviction.

The Appeal was dismissed.

Topic 2 - Expert witnesses

The opinion of an expert witness within his area of expertise is admissible to assist the court
to determine a specialized question which the court might be unable to determine
unaided.5There are two interrelated but distinct questions that the court should satisfy itself
with before admitting evidence proposed as that of an expert's opinion. These questions are:
(1) whether the matter to be resolved is one which would make it appropriate for the court to
receive assistance in form of expert opinion evidence and (2) whether the proposed witness
qualifies to render such expert opinion.6

For one to be an expert witness, they do not necessarily need to have acquired expert training
in the respective area in question. Mere acquisition of skill and experience would generally
suffice.

In R v Silverlock7 where a solicitor for the prosecution who had for ten years, and quite apart
from his professional work, given considerable study and attention to handwriting (especially
to old parish registers and wills) was allowed to be called as an expert in order to prove by
comparison with genuine letters that an advertisement was the handwriting of the accused.
Lord Russell CJ said:

―It is true that the witness who is called upon to give evidence founded on a comparison of
handwriting must be peritus [skilled]; he must be skilled in so doing; but we cannot say that
he must have become peritus in the way of his business. The question is, is he peritus? Is he
skilled? Has he an adequate knowledge? … When once it is determined that evidence is
admissible, the rest is merely a question of its value or weight...‖

5
Supra note 2 p403.
6
Hatchard, J. &Ndulo, M. (1991). The Law of Evidence in Zambia: Case & Materials. Lusaka: Southern African
Institute for Policy and Research. p232.
7
[1894] 2 QB 766.
 85

Similarly, in Gilbert Chileya v The People8 the applicant was convicted of theft of a motor
vehicle. A number of prosecution witnesses gave evidence that, because of certain identifying
marks and peculiarities of the vehicle, the one found in the possession of the applicant was
identical to the one stolen from the complainants. The applicant claimed that he had
purchased the vehicle from a Mr Chulu who had himself purchased that vehicle from Messrs
Hussa and Company. Further evidence was adduced from a dealer in Toyota vehicles to the
effect that the chassis of the vehicle purchased by the applicant from Hussa and Company
was a different model from that on the car claimed by the complainants.

The learned counsel for the applicant argued inter alia, that when the chasis number of the
vehicle was examined and alleged to have been tampered with, the police should have tested
it with a chemical which would have indicated what was the correct number; and also that the
evidence of the witness who referred to the make of the chassis and body was not that of an
expert.

It was held (among other things) that the averment by a non-expert witness that he had been
dealing with Toyota vehicles for a number of years and was familiar with their different
makes is sufficient to qualify such witness to give relevant evidence.

1.1 Handwriting evidence

Handwriting recognition is one area the court may seek expert opinion evidence on. In Chuba
v The People9 the appellant was convicted of the forgery of a cheque. Apart from the opinion
of a handwriting expert, the only evidence connecting the appellant with the offence was that
on the relevant date he was working in the bank at which the forged cheque was presented for
payment, the man who presented the cheque disappeared when asked for proof of his identity
and was never identified.

A police officer took handwriting specimens from three other bank officials apart from the
appellant. He told the court that he handed these specimens to the handwriting expert but the
latter said that he received only specimen writings of the appellant and of the true holder of
the account and the disputed cheque. There was evidence also that the police officer had torn
up some of the specimen writings provided by the appellant.

It was held that:

8
(1981) Z.R. 33 (S.C.).
9
(1976) Z.R. 272 (S.C.).
 86

(i) The evidence of a handwriting expert is an opinion only and the matter is one on which the
court has to make a finding. In addition to his opinion the expert should place before the court
all the materials used by him in arriving at his opinion so that the court may weigh their
relative significance.

(ii) The principle is that the opinion of a handwriting expert must not be substituted for the
judgment of the court. It can only be a guide, albeit a very strong guide, to the court in
arriving at its own conclusion on the evidence before it.

(iii) In this case the evidence showed clearly that the whole of the material available was not
put before the court. In consequence the court was persuaded to accept the opinion of the
expert without having the materials before it, upon which its own opinion would be based.

1.2 Medical evidence

Medical evidence may be admitted as expert opinion evidence provided it is as full and
detailed as possible.10 In Lupupa v The People11 the appellant was charged in the subordinate
court with theft by public servant. Before the commencement of the trial counsel for the
appellant applied for an order that he be medically examined to determine whether he was fit
to plead and to determine also what his state of mind was at the time of the commission of the
offence. A psychiatrist‘s report was submitted which stated the opinion that the appellant was
fit to plead, and the trial proceeded.

It was alleged that the appellant, a public servant, had on five separate occasions stolen
substantial sums of money. There was no dispute that he had physically taken the money; his
defence was that because of the influence of a certain Frank Ninzihe was not acting of his
own free will, which was supported by the psychiatrist‘s report, and that he therefore came
within section 9 of the Penal Code. The magistrate rejected the psychiatrist's opinion and held
that the appellant was acting of his own free will; he held that section 9 applied only where
the act or omission was negligent. He also regarded the defence as one of insanity and that
the onus of establishing it was on the appellant

Held (inter alia):

10
Supra note 6 p239.
11
(1977) Z.R. 38 (S.C.).
 87

(i) Medical evidence, while weighty, is only one of the factors a court should take into
account when deciding whether or not an accused person has acted of his own free will or
whether he falls within section 9 of the Penal Code.

(ii) It is perfectly valid to challenge a medical opinion that a person was not acting of his
own free will, but it cannot be argued on appeal that evidence which has not been
challenged at the trial should not be accepted.

(iii) There being no evidence entitling the trial court to reject the medical evidence, a finding
in the teeth of such evidence must be set aside as one which could not reasonably be
entertained on the evidence.

1.3 Ballistics evidence

Ballistics evidence involves the examination of a weapon's firing characteristics, especially as

used in criminal cases to determine a gun's firing capacity and whether a particular gun fired
a given bullet.12

In Chansa v The People13the appellant was convicted of aggravated robbery. The

circumstances of the offence were that a robbery took place at a club in the course of which a
firearm was used and a man was injured. Subsequently used cartridge case was discovered at
the scene of the robbery and was compared with a similar round fired from a gun with which
quite certainly the appellant was connected. A ballistics expert gave evidence that the used
round was in his opinion fired from that very gun. However he did not support his opinion by
any test material or photographs.

Held:

(i) When an expert gives evidence it is the duty of the court to come to a finding and the
expert's evidence is merely there to assist the court in coming to its conclusion.

(ii) Where there are photographs and other test material available to be placed before the
court the failure to produce that material is fatal, and then the opinion of the expert should not
be accepted.

12
Garner, B. (2009). Black’s Law Dictionary. (9th Ed.). New York: Thompson West. p163.
13
(1975) Z.R. 136 (S.C.).
 88

Both the prosecution and the defence can call their own ballistic experts to support their case.
See the cases of: The People v Paul Pandala Banda14 and the People v Keith Akekelwa
Mukata and Charmaine Musonda.15

Topic 3 - Proof of age

Where the age of a person is an essential ingredient of a charge, that age must be strictly
proved. Thus, in Phiri (Macheka) v The People16 the appellant was convicted of the
defilement of a girl said to be eleven years of age. The only evidence as to age was given by
the girl herself who said that her mother had told her that she was born in 1961.

Held:

(i) Where the age of a person is an essential ingredient of a charge, that age must be strictly
proved.

(ii) It is not acceptable simply for a prosecutrix to state her age; this call be no more than a
statement as to her belief as to her age. Age should be proved by one of the parents or by
whatever other best evidence is available.

In the People v Clifford Dimba Kanene17 the accused was convicted of defilement of a girl
below the age of 16. He had denied the charge and contended that the age of girl be proved
by Magnetic Resonance Imaging (MRI). Both the trial court and the High Court on review
dismissed the contention of the accused as the girl's father testified as to her age.
Furthermore, school records showed that the girl was born in 1998. This meant that the girl
was 14 years old in 2012 when the offence allegedly occurred.

Study Questions

1. Malata is appearing before the Subordinate Court charged with defilement of a girl below
the age of 16. Medical examination in form of an X-Ray scan is conducted on her but the
results are not conclusive as to her age being below the age of 16. Her father who has had a
long-standing feud with the accused testifies to the effect that the prosecutrix is 13 years old.
Malata is convicted as charged. Dissatisfied with the outcome of the case, he appeals both
against conviction and sentence. He contends that the proof of the age of the prosecutrix was

14
HP/64/2016.
15
HP/180/2017.
16
(1973) Z.R. 145 (C.A.).
17
HPS/24/2014.
 89

unsatisfactory in that the girl's father was not a creditable witness as he long harboured so
much hate against him. You are the appellate judge. Rule on this appeal.

2. In the case of the People v Paul Pandala Banda,18why was the court not persuaded by the
ballistic evidence of defence?

3. To what extent was the court persuaded by the ballistic evidence of the defence in the
People v Keith Akekelwa Mukata and Charmaine Musonda?19

4. May a court reject medical expert opinion evidence as to an accused person‘s insanity?
Make reference to decided cases.

18
Supra note 14.
19
Supra note 15.
 90

Unit 14: Rule against hearsay

Introduction

Hearsay evidence is the evidence of the statements of a person other than the witness who is
testifying and statements in documents offered to prove the truth of what was asserted. In
general, hearsay evidence is inadmissible (the rule against hearsay) but this principle is
subject to numerous exceptions. At common law, there are numerous exceptions applicable to
both civil and criminal cases, e.g. declarations of deceased persons and depositions in a Will.
Some exceptions are only applicable in criminal matters.1

Objectives

At the end of this Unit, the student should be able to demonstrate understanding on:

 The general rule against hearsay.

 The student should be able to identify statements that amount to hearsay and therefore
generally inadmissible and those that are not hearsay and therefore always
admissible.

 The student should also be able to acquaint themselves with understanding the
exceptions to the general rule against hearsay.

Topic 1 - The Rule

Hearsay is evidence consisting of a statement made by a person, other than while giving
evidence in the instant case, if the statement is tendered solely for the purpose of proving the
truth of any fact stated by that person.2

In Malimawa v the People3 The appellant was charged with being found in possession of two
dresses reasonably suspected of having been stolen.

A police constable came to Lusaka with the appellant who indicated a shop where he said he
had bought the dresses. This witness went on: "The name of the shop is O.K. House. I entered
into the shop. I spoke to the owner of the shop, Mr C. J. Patel. I showed Mr Patel the dresses
in the presence of the accused. Mr Patel denied knowledge of the dresses as he does not stock

1
Law, J. (Ed.). (2009). Oxford Dictionary of Law. (7th Ed.). London: Oxford University Press. p259.
2
Glover, R. (Ed.). (2013). Murphy on Evidence. (13th Ed.). Oxford: Oxford University Press. p227.
3
(1968) Z.R. 19 (H.C.).
 91

such dresses. The accused was present when Mr Patel said this. The accused said Mr Patel
was only lying."

The magistrate correctly reminded himself that the prosecution had to prove that the property
was reasonably suspected of having been stolen, and clearly was satisfied on that point
because in his judgment he said: "Mr Patel denied knowledge of the dresses as he did not
stock such dresses." The magistrate, however, failed to appreciate that this was inadmissible
evidence, a glaring example of hearsay evidence, because Mr Patel was never called as a
witness. It is a popular misconception among prosecuting officers that such a statement is
admissible in evidence provided it was made in the presence of the accused.

Mr Patel's statement to the police officer afforded no evidence of the facts he stated, and
unless the accused acknowledged the truth of what Mr Patel said it was to be disregarded
altogether. The court allowed the appeal.

There are a number of reasons that have been put forward to support the rule against hearsay.
These include the following three main ones: hearsay statements are unreliable because: (i)
there is room for distortion; (ii) errors in transmission; (iii) it is sometimes impossible to
challenge the source by way of cross-examination.4

If the statement is tendered for any other relevant purpose, e.g., to prove that the statement
was made; was made on a particular occasion; or in particular circumstances; or to prove the
state of mind of the maker, the statement is not hearsay.5

In Subramaniam v Public Prosecutor6 the accused was charged with possession of firearms
without lawful excuse, and evidence was brought on his behalf, in support of a plea of duress,
of what had been said by terrorists. The trial judge had held that the evidence was not
evidence but hearsay. In giving the opinion of the Privy Council that the appeal should be
allowed, Mr Da Silva said:

"Evidence of a statement made to a witness by a person who is not himself called as a witness
may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is
to establish the truth of what is contained in the statement. It is not hearsay and is admissible

4
Hatchard, J. & Ndulo, M. (1991). The Law of Evidence in Zambia: Case & Materials. Lusaka:
Southern African Institute for Policy and Research. p247.
5
Supra note 2 p227.
6
(1956) 1 W.L.R. 965.
 92

when it is proposed to establish by the evidence, not the truth of the statement, but the fact
that it was made."

The above case was cited with approval in the Zambian case of Mutambo and Five Others v
The People.7

Hearsay within hearsay or multiple hearsay, occurs when a hearsay statement contains within
itself an additional layer of separate hearsay. If a fact is not intentionally stated, but may be
implied from the statement, the evidence is not hearsay if tendered for the implied statement.8

Topic 2 - Exceptions to the hearsay rule

At common law, the Rule against Hearsay states that hearsay is inadmissible unless it falls
within an exception to the Rule. Some of these exceptions are now considered below:

2.1 - Statements of deceased persons

2.1.1 Dying declaration

A dying declaration is an oral or written statement by a person on the point of death

concerning the cause of his death. A dying declaration is admissible at a trial for the murder
or the manslaughter of the declarant as an exception to the rule against hearsay evidence,
provided that he would have been a competent witness had he survived. Case law requires
that the person making the dying declaration must have had a "settled, hopeless expectation
of death".9

In R v Osman10 it was stated that:

―A dying declaration is admitted in evidence because it is presumed that no person who is

immediately going into the presence of his Maker will do so with a lie on his lips. But the
person making this declaration must entertain a settled hopeless expectation of immediate
death.‖

2.1.2 Declarations against interest

Declarations against one's interest are well-established exceptions to the general rule against
hearsay. The rationale behind this exception is that it is unlikely that a person would be

7
(1965) Z.R. 15 (C.A.).
8
Supra note 2 p228.
9
Supra note 1 p188.
10
15 Cox, CC 1.
 93

untruthful about their own interests. There are four main requirements that must be satisfied
before a declaration against interest may be admitted. These are:
(1) the declarant must be dead;
(2) the declaration must be against the proprietary or pecuniary interest of the declaration
maker.
(3) the declaration must be a statement of facts which were immediately cognizable by the
declarant personally; and
(4) the declarant must have had no probable motive to falsify the fact declared.11

2.1.3 Declarations as to Pedigree

Statements to be implied from family conduct or statements of a deceased person, are

admissible as evidence of pedigree if four conditions are fulfilled. These are:
(1) the declarant is dead;
(2) the declarations relate to a question of pedigree i.e. have a genealogical purpose;
(3) the declarant was a blood relation or a spouse of a blood relation, of the person whose
pedigree is in issue; and
(4) the declaration was made before the dispute in which it is tendered had arisen.12

In Berkeley Peerage Case13 it was observed that the exception is recognized as it is

reasonable to suppose that people will speak about their family in a truthful way if there is
nothing to be gained otherwise, and because such statements are often the only evidence
available.

2.1.4 Declarations by testators as to their Wills

Oral or written depositions of a deceased testator made after the execution of a will are
admissible evidence of its contents. The rationale behind this exception is that there is no
reason for the testator to be untruthful about the contents.14

11
Supra note 4 p259.
12
Ibid., p260.
13
(1811) 4 Camp 401.
14
Supra note 4 p260.
 94

2.1.5 Declarations in the course of duty

To render admissible an entry made by a person in the course of his duty, it is essential that
not only should it have been made in the due discharge of the business about which the
person is employed, but the duty must be to do the very thing to which the entry relates and
then to make a report or record it. The basis for this exception is the likelihood of dismissal
for failure to record or report accurately which enhances the reliability of the statement.
There must be no reason to falsify the facts.15

2.2 - Declarations in public documents

In Shamwana And 7 Others v The People16 it was found that documents found on a farm
previously occupied by some of the appellants were admissible, and their contents not
hearsay because they were published maps which are admissible as public documents.

2.3 - Res Gestae

Res gestae (things done) is an exception to the rule against hearsay evidence under which
statements forming part of the res gestae are admissible, for example if they accompany and
explain some relevant act or relate to the declarant's contemporaneous state of mind or his
contemporaneous physical sensations.17

In the People v John Nguni18 the accused was charged with manslaughter of one Knife Rive.
The accused and the deceased were in the house of one William Phiri, where drinks were
being sold. Esther Mawila, the wife of William Phiri was also present in the house. As a
result of some remarks made by the deceased to Esther Mawila, the accused became annoyed,
caught hold of the deceased and pushed hint outside the house. Some three minutes
thereafter, the deceased came back and fell outside the doorway of the house crying "Look
what John Ng'uni has done to me." The deceased bore a wound on the left forearm which was
bleeding profusely. He died the following morning. The accused was arrested and was
charged with the offence.

15
Ibid., p260-1.
16
(1985) Z.R. 41 (S.C.).
17
Supra note 1 p474.
18
(1977) Z.R. 376 (H.C.).
 95

The prosecution was unable to adduce direct evidence of the wounding and relied upon the
alleged utterance by the deceased. It was submitted by the State that the alleged utterance by
the deceased should be admitted as it formed part of the res gestae.

Held:

Evidence of a statement made by a person who is not called as a witness may be admitted as
part of the res gestae and can be treated as an exception to the hearsay rule provided it is
made in such conditions of involvement or pressure as to exclude the possibility of
concoction or distortion to the advantage of the maker or to the disadvantage of the accused.

Further, in Edward Sinyama v The People19 the appellant was sentenced to death for the
murder of his estranged wife. The prosecution relied on a confession statement, evidence of
kerosene and matches revealed as a result of the confession and on a statement made by the
deceased after she ran half a kilometre while burning, from her estranged husband's house.
On appeal, the defence challenged all three pieces of evidence.

Held:

A statement is not ineligible as part of the res gestae if a question has been asked and the
victim has replied or if the victim has run for half a kilometre to make the report. If the
statement has otherwise been made in conditions of approximate though not exact
contemporaneity by a person so intensely involved and so in the throes of the event that there
is no opportunity for concoction or distortion to the disadvantage of the defendant or the
advantage of the maker, then the true test and the primary concern of the Court must be
whether the possibility of concoction or distortion should be disregarded in the particular
case.

2.4 Documentary evidence

The rule against hearsay applies equally to documents and it is relevant both to the
authenticity of the documents and to its contents.20 Thus, where a document is proposed to be
adduced as evidence but the author is not called as a witness, the document may generally be
discharged as evidence for being nothing but hearsay.

19
(1993 - 1994) Z.R. 16 (S.C.).
20
Shamwana and 7 Others v The People (1985) Z.R. 41 (S.C.).
 96

In Lungu v The People21 it was remarked as follows:

―Although not raised by counsel, I have noted that the prosecution sought to prove two thefts
in this case by inadmissible evidence. The complainant testified that, as he could not write,
the list of property stolen was completed for him by his sister-in-law Jennifer, and this was
put in evidence as Exhibit D. Jennifer was not called as a witness. It is not competent,
however, for the prosecution to prove a fact against a defendant by producing a document in
which that fact is recorded, without calling the maker of the document to say that what he
wrote in the document represented a true statement of fact...‖

However, Section 3 of the Evidence Act22 makes provision for exceptions under which a
document may be received in evidence, other than by production by its maker.

Thus, in Lufeyo Matatiyo Kalala v The Attorney-General23 the appellant (the plaintiff) sued
the Attorney-General (the defendant) for damages for assault, torture and false imprisonment.
During the course of the plaintiff's evidence he sought to produce two medical report forms
which he received when he was medically examined on the day of his release from police
custody. There was no objection to the production of these forms and the documents were
admitted in evidence without comment.

Held:

(i) The only way a document may be received in evidence other than by production by its
maker is under the Evidence Act.

(ii) Before the court can exercise its discretion to admit a statement without the maker being
called as a witness, it must be satisfied that undue delay or expense would otherwise be
caused.

Study Questions

1. At 15:00 hours, Mumenga whilst lying injured at Levy Mwanawasa General Hospital
makes a declaration to the effect that ‗I am dying. Lukwesa has killed me...‖. At 00:00 hours
the next day, he dies. The prosecution sought to adduce the statement as a dying declaration.
The defence object submitting that the death occurring 9 hours and 30 minutes later, the

21
(1968) Z.R. 24 (H.C.).
22
Chapter 43 of the Laws of Zambia.
23
(1977) Z.R. 310 (S.C.).
 97

deceased cannot be said to have had an expectation of imminent death. Would you sustain the
objection? Cite case law.

2. When can a statement by someone other than its maker be said to be tendered not to prove
the truth of its contents but merely that the statement was made? Give examples.

3. Distinguish between a dying declaration and res gestae. To what extent may the two
overlap (if ever)?
 98

Unit 15: Confessions

Introduction

A confession is an admission, in whole or in part, made by an accused person of his guilt. At

common law [which remains the position under current Zambian law], confessions were
admissible if made voluntarily, i.e. not obtained as a result of some threat or inducement held
out by a person in authority (such as a police officer).1

Objectives

At the end of this Unit, the student should be able to demonstrate understanding on:

 What is required for a confession to be received in against the accused person.

 The student should be able to acquaint themselves with what should follow when the
voluntary nature of a confession is disputed by the accused person.

Topic 1 - Basic principles

Admissibility at common law and Zambian law

Zambian law of evidence in the area of confessions remains to be governed by common law
rules. That is to say, unlike under English law and other jurisdictions where statute now lays
down rules on confessions, Zambian law is still guided by the law as laid down by judges.

The classic statement of the common law rule as to admissibility of confessions was that of
Lord Sumner in Ibrahim v R:2

"It has long been established ... that no statement by an accused is admissible in evidence
against him unless it is shown by the prosecution to have been a voluntary statement, in the
sense that it has not been obtained from him either by fear of prejudice or hope of advantage
exercised or held out by a person in authority."

From the above authority, three elements of a confession must be satisfied if the statement is
to be admissible as a confession:

1
Law, J. (Ed.). (2009). Oxford Dictionary of Law. (7th Ed.). London: Oxford University Press. p120.
2
[1914] AC 599 at 609.
 99

(1) Against the accused

A confession is generally admissible against the particular accused making it. Thus, where
the accused is appearing with a co-accused person, the confession is generally treated as that
of the accused who gave it but not as extending to the co-accused.

In Ivor Ndakala v The People3 the magistrate had permitted evidence of confessions of
the two accused without their consent.

It was held (among other things) that:

(i) When an accused makes an extra-judicial statement in the absence of a co-accused, it

cannot be regarded as evidence against the latter accused; but when the accused goes into the
witness box at the trial and gives evidence which incriminates his co-accused, that evidence
is admissible against the latter accused, and it may be regarded as evidence for the
prosecution against him.

(iii) Evidence of confessions of an accused person or co-accused cannot be introduced in

court without their consent.

(2) Voluntary

In common parlance, ―voluntary‖ meant simply ―of one‘s own free will‖.4 The test of
voluntariness, as defined by Lord Sumner, was supplemented by Lord Parker CJ in Callis v
Gunn5 when he added the requirement that a confession must not have been obtained in ―an
oppressive manner‖.

Whether the requirement of oppression in fact added anything to that of voluntariness is open
to doubt. In R v Priestly6 Sachs J remarked as follows:

"… to my mind, this word, in the context of the principles under consideration imports
something which tends to sap, and has sapped, that free will which must exist before a
confession is voluntary … Whether or not there is oppression in an individual case depends
upon many elements. I am not going into all of them. They include such things as the length
of time of any individual period of questioning, the length of time intervening between
periods of questioning, whether the accused person had been given proper refreshment or not,

3
(1980) Z.R. 180 (H.C.).
4
Glover, R. (Ed.). (2013). Murphy on Evidence. (13th Ed.). Oxford: Oxford University Press. p336.
5
[1964] 1 QB 495, 501.
6
(1965) 51 Cr App R 1.
 100

and the characteristics of the person who makes the statement. What may be oppressive as
regards a child, an invalid or an old man or somebody inexperienced in the ways of this world
may turn out not to be oppressive when one finds that the accused person is of a tough
character and an experienced man of the world."

The definition suggests little distinction between voluntariness and an absence of oppression.7

(3) Person in authority

The rules of admissibility apply only where the fear of prejudice or hope of advantage was
excited or held out, or the oppression created by a ‗person in authority‘. It is, however, settled
that a person in authority must have, or reasonably be thought by the suspect to have, some
influence over his arrest, detention, or prosecution, or in other words, be a person from whom
a threat or inducement might appear credible.

In Abel Banda v The People8 it was held that a village headman is not a person in authority
for purposes of administering a warn and caution before interrogating a suspect, since his
normal duties do not pertain to investigating crime.

Topic 2 – Trial-within-a-trial

Whenever a confession is proposed for admission in evidence against the accused, the
accused must be given an opportunity to state whether or not he has any objection against the
confession being proposed. If the accused alleges that he made the confession under
involuntary circumstances, the court must halt the main trial and conduct a mini trial known
as a Trial-within-a-trial to determine beyond reasonable doubt that the confession was made
voluntarily. A trial within a trial is sometimes used interchangeably with a voir dire.9In
Zambia however, the former is more often used when determining the admissibility of a
confession whereas the latter is often used when determining the competence of a child
witness or a person of defective intellect to give evidence.

In Hamfuti v The People10 it was held that whether or not an accused person is represented, a
trial court should always, when the point is reached at which a witness is about to depose as

7
Supra note 4 p337.
8
(1986) Z.R. 105 (S.C.). Overruling Chibozu v The People (1981) Z.R. 28 (S.C.), which had earlier held
otherwise.
9
For example, see: R v John Kahyata (1963-1964) Z. AND N.R.L.R. 84.
10
(1972) Z.R. 240 (H.C.).
 101

to the content of a statement, ask whether the defence has any objection to that evidence
being led.

Similarly, in Lumangwe Wakilaba v The People11 the appellant was convicted of theft of a
motor vehicle. The prosecution in its evidence tendered two confession statements and
neither the appellant nor his counsel made any objection. The prosecution then closed its
case. When giving evidence the appellant alleged that the statements were made
involuntarily. The trial magistrate refused to conduct a trial within a trial on the ground that it
was not possible since the prosecution had already closed its case. In convicting the appellant
the trial magistrate relied on these statements and there was no other evidence to connect, the
appellant with the offence.

Held:

(i) It is the duty of a court to inquire, where a point is reached at which a witness is about to
depose as to the contents of a statement, whether the defence has any objection to that
evidence being led;

(ii) It was mandatory for the trial magistrate after the issue of voluntariness had been raised to
conduct a trial within a trial notwithstanding that the prosecution had already closed its case.

Furthermore, in Tapisha v The People12 the applicant was convicted of theft. Part of the case
for the prosecution was the evidence of a police officer to whom the applicant was alleged to
have made a free and voluntary statement. Objection was taken on the ground that the
statement was made as the result of beatings, and a trial within the trial was commenced.
When this trial within the trial was almost concluded it was established that the applicant
would allege that he made no statement but that he was forced to sign his name in a
notebook. The magistrate thereupon discontinued the trial within the trial on the ground that a
denial that a statement was made is a matter for the general issues and not for a trial within a
trial.

Held:

(i) Where any question arises as to the voluntariness of a statement or any part of it, including
the signature, then because voluntariness is, as a matter of law, a condition precedent to the

11
(1979) Z.R. 74 (S.C.).
12
(1973) Z.R. 222 (C.A.).
 102

admissibility of the statement this issue must be decided as a preliminary one by means of a
trial within a trial.

(ii) In any other case the issue is simply one of the issues in the trial.

(iii) The failure to conduct a trial within a trial when such an inquiry should have been
conducted is an irregularity, but curable if there has been no prejudice to the accused. Where
prejudice has resulted, or may have resulted, the appellate court must ignore the confession.

(iv) In the result the learned magistrate had all the evidence as to voluntariness before him,
including that of the applicant, and there was no prejudice, he was entitled to hold, as he did,
that the confession was voluntarily made, and to admit it in evidence.

Topic 3 - Judicial Discretion

Where a confession is found to have been voluntarily given, the court may (owing to other
considerations such as breach of the Judges' Rules), still exercise its discretion and refuse to
receive the confession into evidence.

Breach of the Judges’ Rules

Judges' Rules are rules of practice drawn up by the English High Court governing the
questioning and charging of suspects by the police.13 Rule Two of the Rules requires a police
officer to caution a person he suspects, responsibly, before putting any questions to him on
the suspected offence.14The Rules were first promulgated by the judges of the then King‘s
Bench Division in 1912, and subsequently revised from time to time. 15The Judges‘ Rules
applicable to Zambia are the pre-1964 ones.16

In Chilufya v The People17 the appellant was convicted on one count of store breaking. The
trial magistrate made a number of serious misdirections which adversely affected his finding
as to the appellant's guilt.

(i) The alleged confession to an investigating officer was in breach of the Judges' Rules in
that there was no warning administered to the appellant.

13
Supra note 1 p305.
14
Hatchard, J. &Ndulo, M. (1991). The Law of Evidence in Zambia: Case & Materials. Lusaka:
Southern African Institute for Policy and Research. p273.
15
Supra note 4 p338.
16
See: Kangachepe Mbao Zondo and Others v The Queen (1963-1964) Z. AND N.R.L.R. 97
(C.A.); and Chileshe v The People (1972) Z.R. 48 (H.C.).
17
(1975) Z.R. 138 (S.C.).
 103

(ii) When a police officer was about to give evidence as to an alleged confession the
magistrate did not inquire whether there was any objection to the admission of that evidence.

(iii) The property was not conclusively proved to have been in the appellant's possession.

Held:

(i) Judges' Rules are not rules of law: they are rules of practice drawn up for the guidance of
police officers and a statement made in breach of such rules is not ipso facto [because of the
fact mentioned] inadmissible if it is a voluntary statement although the court has a discretion
to disallow it.

(ii) As a general rule in this country, a confession made by a defendant to a person in

authority, such as a police officer, in the absence of any warning, is prima facie inadmissible.
It is only in very exceptional circumstances that such a confession will be admissible.

The appeal was allowed.

Two or more confessions

In Nalishwa v The People18 and later in Chigowe v The People19 reaffirmed by the Supreme
Court, the settled position of the law is that where two confessions are made and the first is
held not to have been freely and voluntarily made, the second will be equally inadmissible
even though there has been no fresh inducement, unless it is shown that the previous
inducement had ceased to operate on the mind of the accused.

However, in Patrick Sakala v The People20 it was stated that where it is the second
confession as opposed to the first confession which is alleged to have been involuntarily
given, different considerations must apply, namely, those pertaining to the exercise of the
court's discretion.

Topic 4 - Statements made in the presence of a party

In R v Christie21 Lord Atkinson observed as follows:

"A statement made in the presence of an accused person, even upon an occasion which
should be expected reasonably to call for some explanation or denial from him, is not

18
(1972) Z.R. 26.
19
(1977) Z.R. 21.
20
(1980) Z.R. 205 (S.C.).
21
[1914] AC 545.
 104

evidence against him of the facts stated save in so far he accepts the statement, so as to make
it, in effect, his own ... He may accept the statement by word or conduct, action or
demeanour, and it is the function of the [court] which tries the case to determine whether his
words, actions, conduct, or demeanour at the time when the statement was made amounts to
an acceptance of it in whole or in part. It by no means follows, I think, that a mere denial by
the accused of the facts mentioned in the statement necessarily renders the statement
inadmissible, because he may deny the statement in such a manner and under such
circumstances as may lead a [court] to disbelieve him, and constitute evidence from which an
acknowledgement may be inferred by [the court]."

Study Questions

1. Akufuna and Muna are arrested for concealing property reasonably suspected of being
proceeds of crime. The police however do not know exactly where such property is actually
concealed. Both suspects are being interrogated by the police at Lusaka Central Police but in
different rooms.

The interrogations last for 6 hours without any break. By the 7th hour of interrogation, both
suspects do not divulge any incriminating information. By the 8th hour, Muna is promised
that if he confesses to the crime and discloses where the property was concealed, no evidence
(including the confession) would be tendered against him and he would be granted immunity
from prosecution.

Mesmerized by this irresistible offer, Muna makes a confession implicating himself and
Akufuna. Unknown to Muna, an identical offer was made to Akufuna but Akufuna remained
unshaken. Using Muna‘s confession, the police managed to locate and unearth K2.1 Million
concealed at Akufuna‘s farm No.1 Sliver Rest, Chongwe District.

Both suspects are charged with concealing property reasonably suspected of being proceeds
of crime. To Muna‘s shock, the Police U-turn on their promise and do not grant Muna any
immunity. The prosecution propose to adduce in evidence Muna‘s confession as well as the
money unearthed at Akufuna‘s farm. Muna makes no objection as to the admissibility of the
confession. Akufuna however strongly objects and submits that the confession is that of
Muna alone and it does not extend to him.

Discuss all the legal issues arising from the above facts. State too whether or not if the
confession is excluded a conviction would still be safe
 105

2. Martin and Bob are arrested for theft of motor vehicle. Both were interrogated in a dark
office on a number of occasions, under three bright lights, threatened with death, or
mutilation, and slapped, punched and kicked. They were photographed naked. They were
subjected to electric shock. Throughout the interrogations they were under armed guard.
Some of the interrogators were recognised to be members of the Criminal Investigation
Department and the guards were Constables.

Bob reached a breaking point and confessed to having stolen the vehicle jointly and whilst
acting together with Martin.

They are both charged with the offence of theft of motor vehicle and are scheduled to appear
in court in two-week's time.

In the meantime, Bob is visited in custody by his pastor. The Pastor encourages Bob on his
faith and prays for him. The following day, Bob calls for the officer in charge as he intended
to make another confession. Bob tearfully tells the officer that he is very sorry for what he
did. He discloses that after having a word with his pastor, he has now fully given his life to
Christ. Bob goes on to confess having stolen the vehicle and again, he implicates Martin.

Discuss all the legal issues arising from the above.

 106

Unit 16: Illegally Obtained Evidence

Introduction

Illegally obtained evidence is evidence which is obtained by infringing the Bill of Rights or
any law.1 This Unit discusses the use of illegally obtained evidence in both criminal and civil
matters and highlights the challenges pertaining to the use of this evidence in Court in
Zambia and in other jurisdictions.

Objectives

At the end of this Unit, the student must demonstrate understanding on:

 The use of illegally obtained evidence in Zambia and other jurisdictions.

 The student should also be able to demonstrate understanding on the philosophical

problems that attach to the admissibility or otherwise of illegally obtained evidence.

Topic 1 – Origin of illegally obtained evidence

The principles relating to illegally obtained evidence originated from a series of cases. The
first in this line of cases is R v Warickshall.2 In that case, a woman was charged as an
accessory after the fact to theft and as a receiver of stolen goods. She was improperly induced
to make a confession in the course of which she said that the property in question was in her
lodgings where it was found. Counsel for the accused argued that the evidence of finding the
stolen property in her custody should be excluded since it was obtained in consequence of the
inadmissible confession. The trial judge rejected the argument.

Topic 2 – Illegally Obtained Evidence in Zambia

Criminal cases
Illegally obtained evidence and its relevance in Zambian Criminal Law was determined in
Liswaniso v the People3 in which the applicant, an Inspector of Police, was convicted of
official corruption, the allegation being that he corruptly received a sum of K80 in cash as
consideration for the release of an impounded motor car belonging to the complainant. The
evidence on which the applicant was convicted was obtained by means of a trap; the handing
over of the currency notes in question by the complainant was pre-arranged with the police,

1
Jefferson, I. (2009). Criminal Evidence. (9th Ed.). New York: Anderson Company. p641.
2
(1783) 1 Leach 263.
3
(1976) Z.R. 277 (S.C.).
 107

and they were recovered from the complainant's house during a search conducted pursuant to
a search warrant. It was common cause that at the time the police officer in question applied
for the search warrant to be issued he swore that the money in question was in the applicant's
house when in fact it was in that officer's possession. It was argued on behalf of the applicant
that the search warrant was invalid and the resultant search illegal, and that anything found as
a result of such a search was inadmissible in evidence.

Held:
(i) Apart from the rule of law relating to the admissibility of in voluntary confessions,
evidence illegally obtained, e.g. as a result of an illegal search and seizure or as a result of an
in admissible confession is, if relevant, admissible on the ground that such evidence is a fact
regardless of whether or not it violates a provision of the Constitution (or some other law).

(ii) The evidence of search and seizure of the currency in the case under consideration,
although based upon an irregular search warrant, was rightly admitted by the trial court
because that evidence was a relevant fact. (Per curiam) Any illegal or irregular invasions by
the police or anyone else are not to be condoned and anyone guilty of such an invasion may
be visited by criminal or civil sanctions.4

Civil matters
The position of illegally obtained evidence in civil matters under Zambian law is the same as
that in criminal matters. That is to say, illegally obtained evidence is admissible if it is
relevant to the facts in issue. This position this finds support in the case of Sitali and Others v
Mopani Copper Mines PLC5 this is an appeal from the judgment of the High Court
dismissing the appellant's claim for a declaration that their dismissal was null and void.

It was held (inter alia) that:

(i) The rule governing the admissibility of illegally or unfairly obtained evidence in civil
cases, is the same as that in criminal cases. Namely, the relevant evidence is admissible
regardless of the manner in which it is obtained.

(ii) In terms of admissibility of evidence, there is no difference in principle between a civil

4
Ibid.
5
(2004) Z.R. 176 (S.C).
 108

and a criminal case. In a criminal case, the Judge always has discretion to disallow evidence,
if the strict rules of admissibility would operate unfairly against an accused.

Topic 3 - How illegally obtained evidence is treated in other jurisdictions

England

In England and in most other countries that follow Anglo-Saxon legal tradition evidence is
admitted even if obtained illegally. The principle that evidence should not be excluded
merely because the constable has blundered in obtaining evidence is a rule, also known as the
common law ―English Rule,‖6 was justified by an English judge, in Elias v Pasmore7 who
explained:
―I think it would be a dangerous obstacle to the administration of justice if we were to hold
that because evidence was obtained by illegal means, it could not be used against the party
charged with an offense. It therefore seems to me that the interests of the state must excuse
the seizure of documents, which seizure would otherwise be unlawful, if it appears in fact
that such documents were evidence of a crime committed by anyone.‖ The principle,
however, does not apply to involuntary confessions.

In the case of Jones v Owen8 the accused was searched illegally by constable and twenty-five
young salmon found in his pocket. This evidence was held by Justices to be admissible upon
a charge of unlawful fishing. On appeal to the Divisional Court of the Kings Bench Division,
Mellor, J, held: "It would be a dangerous obstacle to the administration of justice if we were
to hold, because evidence was obtained by illegal means, it could not be used against a party
charged with an offence."

Jamaica

The relevance of illegally obtained evidence in Jamaica was considered in the case of King v
R9 this was an appeal to the Privy Council against the decision of the Court of Appeal of
Jamaica. There the accused was illegally searched under the purported authority of a search
warrant and dangerous drugs were found in his possession. At his trial on a charge of being in
possession of dangerous drugs, evidence of possession was admitted. On appeal to the

6
Supra note 2 p640.
7
(1934) 2 K.B. 65.
8
(1870) 34 J.P. 759.
9
(1968) 2 All E.R. 610.
 109

Judicial Committee of the Privy Council it was held that the evidence obtained in
consequence of the illegal search warrant had been rightly admitted. Lord Hodson, who
delivered the opinion of the court, said: "The appellant relied in support of his submission
that the evidence illegally obtained against him should be excluded on the argument that it
was obtained in violation of his constitutional rights... This constitutional right may or may
not be infringed in a written Constitution, but it seems to their Lordships that it matters not
whether it depends on such infringement or simply the common law as it would do in this
country. In either event, the discretion of the court must be exercised and has not been taken
away by the declaration of the right in written form."

India

In India, illegally obtained evidence is admissible on the basis, apparently, that such evidence
whatever the mode of obtaining it, is relevant and therefore admissible. In Chwa Hum Htive v
King-Emperor,10 drugs were discovered as a result of an irregular search Bagulay, J.,
observed that the irregularity in the search was a mere technicality but stated in general terms
that evidence obtained consequent upon the commission of irregularities was nevertheless
admissible In his brief statement of principle he said: "...it must be remembered that the
acquittal of guilty accused is just as much miscarriage of justice as the conviction

Topic 4 - Challenges pertaining to the use of illegally obtained evidence in Court in

Zambia and in other jurisdictions

In the Liswaniso case, the Supreme Court of Zambia observed that on consideration of the
authorities on the subject of illegally obtained evidence, two contrasting views emerge. The
first one is that it is important in a democratic society to control police methods and activities
in order to secure a satisfactory assurance of respect for the law. It is argued that this can be
achieved by denying to the police the right to use evidence that has been illegally obtained on
the basis that it is better that guilty men should go free than that the prosecution should be
able to avail itself of such evidence.11

The second is that it is not desirable to allow the guilty to escape by rejecting evidence
illegally procured and that what is discovered in consequence of an illegal act should, if
relevant, be admissible In evidence but that the policeman, or anyone else, who violates the
law should be criminally punished and/or made civilly liable for his illegal act. Although the

10
(1926) I.L.R. 11 Rang. 107.
11
Supra note 2.
 110

law must strive to balance the interests of the individual to be protected from illegal invasions
of is liberties by the authorities on one hand and the interests of the State to bring to justice
persons guilty of criminal conduct on the other, it seems to us that the answer does not lie in
the exclusion of evidence of a relevant fact.12

American jurisprudence adheres to the first view above. It was not until 1914 that the United
States Supreme Court, in the case of Weeks v United States13 made the exclusionary rule
applicable in federal courts in that country. The Supreme Court held that, in a federal
prosecution, the Fourth Amendment barred the use of evidence secured through an illegal
search and seizure. The reason for adopting the exclusionary rule is that the rule (according to
the court) is the only way for the judiciary to ensure that police and prosecutors will not
violate or encourage violation of the rights protected by the Constitution and its amendments.
If courts allowed illegally seized evidence to be introduced for jury consideration, the courts
could be considered tainted by the illegality that they would be condoning. The situation
becomes more clear when one lawbreaker, the criminal, is prosecuted by evidence obtained
by another lawbreaker, the police officer, who obtained evidence illegally. While the English
courts argue that the remedy is action against the officer who violates these provisions, the
courts in America emphasize that only by excluding the evidence can these privileges be
sufficiently protected. By removing illegally seized evidence from admissibility, the incentive
for law enforcement agents to violate the law or Constitution is substantially diminished.14

Further, in Silverthorne Lumber Co. v United States15 Silverthorne attempted to evade paying
taxes. Federal agents illegally seized tax books from Silverthorne and created copies of the
records. The issue in this case is whether or not derivatives of illegal evidence are permissible
in court. The ruling, delivered by Oliver Wendell Holmes, Jr., was that to permit derivatives
would encourage police to circumvent the Fourth Amendment, so the illegal copied evidence
was held tainted and inadmissible. This precedent later became known as the "fruit of the
poisonous tree doctrine," and is an extension of the exclusionary rule.

Zambia and commonwealth countries adhere to the second view. Wigmore, an ardent
supporter of admissibility of illegally obtained evidence, stated quite categorically that
legality in the method of obtaining evidence did not affect its admissibility at common law,
and he strongly attacked what he regarded as an aberration on the part of the American
12
Ibid.
13
(1914) 232 I.S. 383.
14
Supra note 1 p640-1.
15
(1920) 251 U.S. 385.
 111

Supreme Court in departing from this rule. He particularly attacked the decision in the Weeks'
case as: "making justice inefficient and ...coddling the law-evading classes of the population.
It puts Supreme Courts in the position of assisting to undermine the foundations of the very
institutions they are set there to protect. It regards the over-zealous officer of the law as a
greater danger to the community than the unpunished murderer or embezzler or pandered."16

It is little wonder therefore that the American courts have expressed caution in their
adherence to the exclusionary rule. In Hudson v Michigan17 Justice Scalia stated as follows:

"Suppression of evidence, however, has always been our last resort, not our first impulse. The
exclusionary rule generates "substantial social costs," which sometimes include setting the
guilty free and the dangerous at large. We have therefore been "cautious against expanding"
it, and "have repeatedly emphasized that the rule's "costly toll" upon truth-seeking and law
enforcement objectives presents a high obstacle for those urging its application." We have
rejected "indiscriminate application" of the rule, and have held it to be applicable only "where
its remedial objectives are thought most efficaciously served," – that is, "where its deterrence
benefits outweigh its 'substantial social costs,'". Whether the exclusionary sanction is
appropriately imposed in a particular case is an issue separate from the question whether the
Fourth Amendment rights of the party seeking to invoke the rule were violated by police
conduct.

The position of Zambia and other commonwealth countries as regards evidence illegally
obtained is not free from challenges. It is a virtually universally accepted principle that
involuntary confessions cannot be admitted as evidence in court. However, evidence
derivative from such confessions is itself admissible in court albeit the involuntary
confessions being inadmissible.18

Topic 5 – Proposals for Reform in Zambia

Under the proposed failed Bill of Rights, the Constitution was set to abolish the admissibility
of illegally obtained evidence in Zambia. Article 36 (2) (l) of the failed Bill of Rights
provided that: ―An accused person or a detainee has the right to a fair trial, which includes the
right –

16
Supra note 1 p641.
17
(2006) 537 U.S. 586 S.Ct. 2159.
18
Supra note 2.
 112

not to have illegally obtained evidence admissible at the trial."19

It is not clear if the position on illegally obtained evidence in civil matters would also have
been altered had the proposed Bill of Rights passed. It clear however, that the position on
illegally obtained evidence in Zambian criminal law would have changed from such evidence
being admissible to not being admissible.

Study Questions

1. The police suspect Hantobolo of drug trafficking. Hantobolo is a Prophet of a church

called Everlasting Signs and Wonders International Ministries. The police suspect that the
drugs Hanbolobo is trafficking in are concealed at his office which is an annex to the church
building. Entry into the office is only through the church.

On one Sunday afternoon during the church's deliverance service, 10 Police officers storm
into the church disrupting the service. All the church members are in shock. The police
disclose that they are there to conduct a search on the church premises as they were reliably
informed that the premises were being used for concealing and trafficking in drugs.

Hantobolo demands for a search warrant. The police are angered by this request and
apprehend Hantobolo. They then give him 4 perfect slaps in quick succession on both sides of
his cheeks. Some church members upon seeing their ―Papa‖ roughed up, charge on the police
officers. One of the police officers is armed and fires two warning shots in the church ceiling.
All the members scatter for their lives.

The police then proceed to search Hantobolo‘s office. They embark on their search turning
the whole place upside down. The search turns out to be a success as the police unearth 25kg
of Cannabis and10 sachets of cocaine weighing a combined weight of 10kg from the office.

Hantobolo now stands charged with the offence of drug trafficking. He challenges the
admissibility of the evidence obtained by the police as it was in glaring violation of his
freedom of conscience and the privacy of his person and other premises as guaranteed by the
Constitution. The State submit that although the evidence was indeed illegally obtained, it is
still admissible as it is relevant to the facts in issue.

Discuss all the legal issues arising from above.

19
Statutory Instrument No. 35 of 2016.
 113

Unit 17: Evidence of Identification

Introduction

Evidence of Identification is evidence that tends to prove the identity of a person. A person's
identity may be proved by direct evidence (even though it may involve an expression of
opinion) or by circumstantial evidence. Secondary evidence of an out-of-court identification
by a witness (e.g. that he picked the accused out of an identification parade) may also be
given to confirm the witness's testimony. In criminal cases, if the evidence of identity is
wholly or mainly based on visual identification the court must specially itself of the danger of
accepting the evidence; any corroboration must be pointed out by the judge.1

Objectives

At the end of this Unit, the student should be able to demonstrate understanding on:

 The considerations the court should take into when the prosecution‘s case wholly or
substantially relies on the doubtful identity of the accused person.

 The student should also be able to demonstrate understanding on some methods of

identifying a suspect or accused person.

Topic 1 - General principles

The general principles governing evidence of Identification were enunciated by the English
Court of Appeal in the case of R v Turnbull2 as follows:

(1) There is a special need for caution when the prosecution case depends on evidence of
visual identification.

(2) The summing-up should contain a warning of the need for caution and an explanation as
to why caution is needed.

(3) The summing-up should deal with the circumstances of the identification in the particular
case.

(4) The judge should point out that a convincing witness may be mistaken.

It specific terms, the Court of Appeal guided as follows (in part):

1
Law, J. (Ed.). (2009). Oxford Dictionary of Law. (7th Ed.). London: Oxford University Press. p214.
2
[1976] 3 All ER 549.
 114

"The danger of miscarriages of justice occurring could be much reduced if trial judges
summed up to juries in the way to be indicated. First, whether the case against an accused
depended wholly or substantially on the correctness of one or more identifications of the
accused which the defence alleged to be mistaken, the judge should warn the jury of the
special need for caution before convicting in reliance on the correctness of the identification.
In addition, he should instruct them as to the reasons for the need for such a warning and
make some reference to the possibility that a mistaken witness could be a convincing one and
that a number of such witnesses could all be mistaken. Provided that was done in clear terms,
the judge did not need to use any particular form of words.

Secondly, the judge should direct the jury to examine closely the circumstances in which the
identification by each witness came to be made. How long did the witness have the accused
under observation? At what distance? In what light? Was the observation impeded in any
way, e.g., by passing traffic or a press of people? Had the witness ever seen the accused
before? How often? If only occasionally, had he any special reason for remembering the
accused? How long elapsed between the original observation and the subsequent
identification to the police? Was there any material discrepancy between the description of
the accused given to the police by the witness when first seen by them and his actual
appearance?

If in any case, whether it was being dealt with summarily or on indictment, the prosecution
had reason to believe that there was such a material discrepancy they should supply the
accused or his legal advisers with particulars of the description the police were first given.
In all cases if the accused asked to be given particulars of such descriptions, the prosecution
should supply them. [...]. Finally, the judge should remind the jury of any specific
weaknesses which had appeared in the identification evidence.

Recognition might be more reliable than identification of a stranger; but even when the
witness was purporting to recognise someone whom he knew the jury should be reminded
that mistakes in recognition of close relatives and friends were sometimes made.

All those matters went to the quality of identification evidence. If the quality was good and
remained good at the close of the accused's case, the danger of a mistaken identification was
lessened; but the poorer the quality, the greater the danger.

When, the quality was good, e.g., when the identification was made after a long period of
observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a
 115

workmate and the like, the jury could safely be left to assess the value of the identifying
evidence even though there was no other evidence to support it; provided always, however,
that an adequate warning had been given about the special need for caution. Were the courts
to adjudge otherwise, affronts to justice would frequently occur".3

The Court went further to guide that:

"When, in the judgment of the judge, the quality of the identifying evidence was poor, as for
example when it depended solely on a fleeting glance or on a longer observation in difficult
conditions, the situation was very different. The judge should then withdraw the case from
the jury and direct an acquittal unless there was other evidence which went to support the
correctness of the identification. That might be corroboration in the sense lawyers used that
word; but it did not need to be so if its effect was to make the jury sure that there had been no
mistaken identification."4

As there is no jury system in Zambia, the relevant directions stated to be given to the jury in
the above case must be taken by the trial Judge or magistrate. The above case was cited with
approval in the Zambian cases of the People v Swillah5 in which the accused was charged on
two counts of aggravated robbery arising out of the same transaction. The prosecution case
was that the accused with two others assaulted three people and robbed them of K212. The
accused was identified as one of the robbers by three witnesses. The opportunity to observe
the accused was good but the witnesses were terrified and the lighting was poor.

Held:

(i) The quality of the identification evidence was poor and it was therefore necessary to seek
a connecting link or other supporting evidence to connect the accused with the robbery.

(ii) In the course of his evidence on oath, the accused told a lie intending to disassociate
himself from a group of charcoal burners who were suspect. There being no connecting link
or supporting evidence, the accused must be acquitted.

(iii) The fact that the accused told a lie was not in the circumstances conclusive evidence of
his guilt.

3
Ibid.
4
Ibid.
5
(1976) Z.R. 338 (H.C.).
 116

Topic 2 - Means of identifying the accused

In some jurisdictions such as England, there are various means of identifying the accused,
viz. visual identification; identification in court; identification out of court; video
identification; the use of photographs; the use of photofits and sketches; and other forms of
identification e.g. fingerprints and DNA. In Zambia however, current authority mainly
supports the first three of the above means of identification as well as identification by
fingerprints.

Visual identification (or recognition?)

According to Professor W. Twining, the statement ‗X identified Y‘ is a paradigm of

ambiguity. It could mean: X recognised Y or ‗X formed the belief that Y was the same as Z‘
or ‗X decided that Y was the same as Z‘ because in looking at the problem of identification it
is obvious that ―a complex variety of mental processes and human actions are involved:
seeing, hearing, acquiring, storing, interpreting, and receiving information, asserting,
communicating, describing, persuading, deciding, and so on‖.6

The adjudicative problem raised by treating ―evidence of recognition‖ as one of ―visual

identification‖ was highlighted by three cases. In R v Ryan7 the accused was charged with the
robbery of a chemist‘s shop. The only prosecution evidence was that of a 17-year-old
schoolgirl who said that she recognised the accused as being the brother of a girl who was at
her school and described the accused‘s hairstyle, the jumper he was wearing and that he had a
bag round his neck. When police visited the accused his hairstyle differed from that
described; he was not wearing the jumper nor did he have a bag around his neck. There was
no identification parade and the judge declined to accede to a submission of no case made by
the defence. The accused was convicted and appealed. It was held, dismissing the appeal, that
the matters concerning the hairstyle and the absence of identification parade could be
explained and the summing-up was impeccable.

Identification in court

The general principle is that unless there are exceptional circumstances a witness should not
be allowed to identify an accused person for the first time in the dock. 8 The rationale is that
the witness may be influenced in making an identification by sight of the defendant.

6
Twining, W. (1994). Rethinking Evidence:Exploratory Essays. Illinois: Northwestern University Press. p169.
7
[1990] Crim LR 50.
8
R v Howick [1970] Crim LR 403.
 117

Identification in court is allowed in the following cases: (i) where the defendant refused to
participate in an identification parade;9 (ii) where the police officer or investigating officer is
prevented through illness from making an identification before the trial;10 and where the
witness had to pick out one person from two or more witnesses known to him.11In all these
cases, a dock identification is proper.

Identification out of court

In Zambia, a witness may identify the defendant out of court in two main ways:(i) at a
confrontation and (ii) at an identification parade.

(i) Identification at a confrontation

An identification at a confrontation refers to a situation where a witness confronts the

defendant alone, usually but not necessarily at a police station. In Green Nikutisha and John
Mwakishala v The People12 the police did not deliberately invite the witness to identify.
There, it was by sheer chance or accident that a witness was allowed to be in a position where
he was able to see the suspects arriving at the police station, and before the event could be
stopped, the witness identified one of the suspects who he had already described.

(ii) Identification Parade

An identification parade (known as a lineup in the US) is a police identification procedure in

which a criminal suspect and other physically similar persons are shown to the victim or a
witness to determine whether the suspect can be identified as the perpetrator of the crime.13

Where an identification parade is of poor quality and there is nothing else with which to
connect the accused person with the crime, the accused must be acquitted. There are a
number of circumstances that may render an identification parade unsatisfactory. They
include lining up persons of dissimilar physical features; bringing into contact a witness who
has identified a suspect at an identification parade with other witnesses who are yet to visit
the parade and asking a witness to specifically identify a particular suspect. The following
cases illuminate the foregoing:

In Toko v The People14 the appellant was convicted on two counts of aggravated robbery.

9
R v John [1973] Crim LR 113.
10
R v Caird [1970] Crim LR 656.
11
R v Hughes (1977) The Times, 8 November.
12
(1979) Z.R. 261 (S.C.).
13
Garner, B. (2009). Black’s Law Dictionary. (9th Ed.). New York: Thompson West.p1014.
 118

Two women had seen the appellant emerge from behind an anthill holding a knife in his
raised right hand. He had threatened them with death if they did not surrender their money to
him. One of them was robbed of K16.50 cash and the other was robbed of K14.50. About
two days later of them both unhesitatingly picked out the appellant as the robber at an
identification parade comprising nine men.

Silungwe, CJ observed as follows:

"It is necessary to point out that it is improper for a witness who has identified a suspect at an
identification parade to be brought into contact with witnesses who are yet to visit the parade.
The police or anyone responsible for conducting an identification parade must do nothing that
might directly or indirectly prevent the identification from being proper, fair and independent.
Failure to observe this principle may, in a proper case, nullify the identification.

In the present case, however, we are satisfied that nothing prejudicial to the appellant
transpired between the two identifying witnesses after the first one had identified the
appellant and before the second witness did likewise; we consider that each of these
witnesses independently identified the appellant.

[...]

After all has been said on this question of identification, we are of the opinion that the
appellant was correctly identified by two witnesses independently as the man who had
perpetrated the two robberies."

In Lungu v The People15 the two appellants were charged before the subordinate court of the
first class at Lusaka on one count of store-breaking and one count of burglary and theft.

The essence of this case is that five men, four posing as police officers and one as a thief,
tricked the complainant and his wife into leaving their house and store and accompanying
them in a car on the pretext that they were going to Chilanga Police Station. In the middle of
the bush the complainant and his wife were persuaded to get out, whereupon these men
departed in the car. On their eventual return home on foot the complainant found his store
broken into and ransacked and his house burgled. As a result of descriptions provided, the
two appellants were apprehended the same day and were identified by the complainant and
his wife the following day.

14
(1975) Z.R. 196 (S.C.).
15
(1968) Z.R. 24 (H.C.).
 119

It was held that the identification of suspects must also be fairly and properly conducted
when a parade is resorted to. Scott Ag J: observed as follows:

It seems to me that this parade was virtually useless; and it was certainly unfair in that the
two appellants were apparently dressed up in a completely different fashion from the rest of
those on parade.

[...]

Alternatively, it would have been equally fair if the two appellants and the rest on the parade
had been dressed in similar nondescript clothing. On the evidence as I read it, it was
inevitable that two persons, dressed as had been described to the police, would be picked out
by the complainants. Without the evidence of this identification parade before him, it is
doubtful whether the magistrate would have been satisfied that the accused persons in the
dock before him were those who had been seen on the night in question.

Because of the unsatisfactory nature of this identification parade I consider that this appeal
should be allowed, more particularly as there is nothing else with which to connect the
accused persons with the crime."

Lastly, in Chimbo and Others v The People16 the appellants were convicted of murder. The
prosecution witnesses were the accused's wife, who identified the appellants as the culprits,
and the driver of the truck which transported the appellants, a self-confessed accomplice. The
appeal was against the admissibility of confessions of the first and second appellants and the
identification of the third.

Ngulube, DCJ stated:

"Further investigations led to the apprehension of the third appellant who consistently denied
the charge. The third appellant was made to sit on a bench at the police station with the first
and second appellants and a fourth man. PW2 was then specifically asked by the police to
identify from among them the third assailant who, she was told, had not previously been on
the identification parade, and she duly recognised the third appellant as such third man. We
must say that this was a most undesirable procedure to adopt when a proper identification
parade could easily have been arranged. We agree with the submission made by Mr.
Mwamasika that identification obtained in this manner should generally he viewed as
unsatisfactory, if not worthless.
16
(1982) Z.R. 20 (S.C.).
 120

Study Questions

1. On a moonless night of 16th July 2018 at 22:00 hours, Ingrid was sleeping when someone
opened the door and entered into the house. The intruder went straight to the bedroom where
she was. The intruder attempted to have sexual intercourse with her. She woke up from her
sleep, pushed the intruder away and screamed for help. The intruder bolted but was shortly
apprehended by other members of Ingrid‘s family who had had been awaken by her cry for
help. The intruder was identified as Mwape Enoch a well-known neighbour of Ingrid.

The next day, Mwape is arrested and at the police station an identification parade featuring
Mwape and 6 other men of physically dissimilar features as Mwape is conducted. Ingrid and
two of her family members who had apprehended Mwape visit the identification parade and
they all identity Mwape without any difficulty. Mwape now stands charged with attempted
rape. How should the court handle the evidence of identification?
 121

Unit 18: Documentary and real evidence

Introduction

The Evidence Act1 defines a document as: "...includes any device by means of which
information is recorded or stored, and books, maps, plans and drawings." It is clear that the
prime characteristic of a document is that it should contain and convey information. It seems
also that the word implies writing or other inscription, though in modern times, the storing of
information in diagrammatic form or in a computer, or the audio or video recording of
information is probably equally acceptable for many purposes. The form of a document, and
the materials of which it is composed, are of limited contemporary importance. 2 In R v Daye3
Darling J pointed out that paper itself had been preceded by parchment, stone, marble, clay,
and metal. He went on to say that an object may be regarded as a document, whatever its
material, ―provided it is writing or printing and capable of being evidence‖.

The courts have been prepared to recognize successive technological developments in the
storage and reproduction of information, by treating as documents for most purposes
anything which is the functional equivalent of the traditional paper document. This entails
that film, tape, videotape, microfilm, microfiche, and the like are to be regarded as documents
for general purposes.4There are three main areas that govern documentary evidence. These
are: (1) the primary evidence rule, otherwise known as the ‗best evidence rule‘, as to the
proof of the contents of a document; (2) the extrinsic evidence rule, restricting the
admissibility of extrinsic evidence to contradict or vary the terms of a document; and (3) the
rule as to proof of due execution of certain documents.5

Real evidence is evidence in the form of material objects (e.g. weapons). When an object is
admitted in evidence, it is usually marked as an exhibit. Documents are not usually classified
as real evidence, but may be treated as such if the physical characteristics of the document
(rather than its content) are of significance. Some authorities include evidence of
identification and the demeanour of witnesses within the classification of real evidence.6

1
Chapter 43 of the Laws of Zambia.
2
Glover, R. (Ed.). (2013). Murphy on Evidence. (13th Ed.). Oxford: Oxford University Press. p679.
3
[1908] 2 KB 333.
4
Supra note 2 p679.
5
Ibid.
6
Law, J. (Ed.). (2009). Oxford Dictionary of Law. (7th Ed.). London: Oxford University Press. p453.
 122

Objectives

At the end of this Unit, the student should be able to demonstrate understanding on:

 The rules governing the production of a document relied on for its contents.

 The student should be able to acquaint themselves with the primary evidence rule and
the exceptions to this rule.

 The student needs to demonstrate understanding on the extrinsic evidence rule and its
exceptions.

 The student should also show understanding on the means of due execution of a
document and the various forms real evidence may take.

Topic 1 - Proving the contents of a document

1.1 The primary evidence rule, otherwise known as the ‘best evidence rule’, as to the
proof of the contents of a document

It is an ancient rule of the common law that a party who wishes to rely on the contents of a
private document as direct evidence, must adduce ―primary‖ (as opposed to ‗secondary‘)
evidence of the contents of that document. It may be observed that the usual meaning of the
term ‗primary evidence‘ is the production of the original document.7

In Garton v Hunter8 Lord Denning MR referred to an earlier decision in which indirect

evidence that a hereditament was let at a rack rent was held to be inadmissible, on the ground
that it was not the best evidence of that fact.9Disapproving the earlier decision, Lord Denning
said:

―It is plain that Scott LJ had in mind the old rule that a party must produce the best evidence
that the nature of the case will allow, and that any less good evidence is to be excluded. That
old rule has gone by the board long ago. The only remaining instance of it that I know is that
if an original document is available in one‘s hands, one must produce it. One cannot give
secondary evidence by producing a copy.‖

7
Supra note 2 p680.
8
[1969] 2 QB 37, 44.
9
Robinson Brothers (Brewers) Ltd v Houghton and Chester-le-Street Assessment Committee [1937] 2 KB 445.
 123

The best evidence rule arose in an age where the only method of producing copies was by
handwriting, and the possibilities of fraud or error were legion. The process of reproducing
complicated texts, especially those written in copperplate and in the wide pages required for
scrolls and deeds, no doubt often in bad light, which was a feature of legal and business
practice well into the nineteenth century, made the primary evidence rule a practical
necessity.10

Proof of contents
The rule requiring primary evidence applies to all cases in which a party seeks to rely upon
the contents of a document as direct evidence, or as evidence proving the document itself.11
In Augustien v Challis12 the plaintiff sued a sheriff for negligence in withdrawing a writ of
fieri facias (a method of executing on a judgment) in the plaintiff‘s favour. The sheriff‘s
defence was that another creditor, the debtor‘s landlord, was entitled to receive rent from the
debtor, and that this entitlement enjoyed priority over the judgment debt to the plaintiff. Proof
of the priority depended upon proof that the rent was indeed due to the debtor‘s landlord
under the terms of the lease. Since the existence and terms of the lease were to be proved, the
rule required the production of the original lease as primary evidence. The landlord failed to
produce the lease, and his evidence that rent was due under the lease was held to be
inadmissible secondary evidence.

Proof of matters other than contents

Conversely, where there is no intent to prove the contents of the document as direct evidence,
and the document is used for some other purpose only, the rule requiring primary evidence
does not apply. If, for example, a party wishes to prove that the relationship of landlord and
tenant existed and no more, and is not concerned to prove the terms of the lease, there is no
need to adduce primary evidence of the lease. Secondary evidence, such as the oral evidence
of one of the parties, may be adduced to prove the relationship.13

10
Supra note 2 p680.
11
Ibid., p681.
12
(1847) 1 Ex 279.
13
Supra note 2 p682.
 124

In R v Elworthy14 however, a solicitor was prosecuted for perjury, it being alleged that he had
wilfully and falsely denied having prepared a draft of a statutory declaration. The prosecution
adduced secondary evidence to show, firstly that the draft in fact existed and was in the
possession of the accused, and secondly that certain alterations had been made to its contents.
The accused‘s conviction was quashed on appeal. Although the secondary evidence was
perfectly proper for the first purpose, it was inadmissible for the second, because the
prosecution then wished not merely to prove the existence and location of the document, but
to rely upon its contents as direct evidence of the alleged forgery. For this purpose, primary
evidence was required.

Rule restricted to documents in usual sense of term

The primary evidence rule applies only to documents in the usual sense of that term, i.e.,
written material. The courts have declined to extend it to ‗documents‘ consisting of film,
tape, and the like. There is little reason to burden these categories with a restrictive and
formalistic rule conceived in the days before technology had begun to spawn new forms of
storing information which give a new meaning to the term ‗original‘.15

In Kajala v Noble16a prosecution witness, by viewing a BBC news film, identified the
accused as a member of a group of persons who had caused a serious public disturbance. The
original film was retained by the BBC, and at trial the prosecution relied on a video-cassette,
which the court was satisfied was an authentic copy of the original film. On appeal against
conviction, it was argued for the accused that since the prosecution had relied upon the
contents of the film, and since the film should be regarded as a document, primary evidence
should have been required. The Court declined to extend the rule beyond ‗written documents
in the strict sense of the term‘ and held that it had no application to tapes or films.

Kinds of primary evidence include: the original, copies of enrolled documents and the
contents of a documents the contents of which have been admitted by an opponent.17

14
(1867) LR 1 CCR 103.
15
Supra note 2 p682.
16
(1982) 75 Cr App R 149.
17
Supra note 2 p683-4.
 125

1.2 Admissibility of Secondary Evidence

A party who wishes to rely upon the contents of a document must, as we have seen, adduce
primary evidence of the contents. Only in the exceptional cases enumerated below will
secondary (i.e., non-primary) evidence be admissible. However, if secondary evidence is
admissible, it may be adduced in any form in which it may be available, whether by
production of a copy, of a copy of a copy, by oral evidence of the contents, or in any other
form. It is often said that ―there are no degrees of secondary evidence‖. The court will not
(except as to weight) discriminate between the quality of copies of a document. The
secondary evidence must be authenticated by foundational evidence that the alleged copy is
in fact a true copy of the original.18

Secondary evidence is admissible to prove the contents of a document in the following

exceptional cases:

(a) if a party fails to disclose or produce the original.

A party is entitled to serve on his opponent notice to produce documents in the opponent‘s
possession and to admit the contents of those in his own possession. The giving of notice
does not compel production of the original, but merely sets the stage for the use of secondary
evidence if the original is not produced.19

(b) if a non-party to proceedings lawfully refuses to produce the original

If a document is in the possession or custody of a person who is not a party to the
proceedings, its contents may be proved by secondary evidence in any case where the non-
party is lawfully entitled to refuse to produce it, for example because it is privileged in his
hands, or he is beyond the jurisdiction of the court. If, however, the refusal is unlawful,
secondary evidence will not be admissible, because production of the original may be
compelled. Refusal to produce by the non-party in such a case may be punishable by
proceedings for contempt or by making him liable in respect of any resulting loss.20

18
Ibid., p684.
19
Ibid.
20
Ibid., p686
 126

(c) if the original is lost

Where the original document cannot be found or identified after due search, its contents may
be proved by secondary evidence.21In Brewster v Sewell22 it was held that t is for the party
seeking to rely on the document to show that all reasonable steps by way of search have been
taken.

(d) if it is impossible to produce the original

Secondary evidence will be admissible where the actual production of the original is
impossible, for example where the document takes the form of an inscription on a tombstone
or a wall or simply because it has been destroyed.23 In Owner v Bee Hive Spinning Co. Ltd24
the same principle was applied to a notice giving particulars of meal-times in a factory, which
by statute was obliged to remain affixed to the wall of a particular place, and so was ‗legally
impossible‘ to produce.

(e) if the document is or forms part of a bankers’ book

In terms of section 3 of the Evidence (Bankers' Books) Act25 a copy of any entry in a banker's
book shall in all legal proceedings be received as prima facie evidence of such entry, and of
the matters, transactions and accounts therein recorded. The Act goes further to make
provision for proof that book is a banker's book and verification of copy.26

(f) Public Documents

A public document is a document concerned with a public matter, made under a public duty
to inquire into all the circumstances recorded and meant for public inspection.27 Order V (4)-
(8) of the High Court Rules makes provision for the production of public documents such as:
the Government Gazette in Zambia and other commonwealth jurisdiction.28

21
Ibid.
22
(1820) 3 B &Ald 296.
23
Supra note 2 p687.
24
[1914] 1 KB 105.
25
Chapter 44 of the Laws of Zambia.
26
Ibid., Sections 4-6.
27
Supra note 6 p438.
28
Chapter 27 of the Laws of Zambia.
 127

Topic 2 - Extrinsic evidence of terms of the a document

Extrinsic evidence is any evidence outside a document itself offered in evidence to explain,
vary, or contradict its meaning.29 Extrinsic evidence includes other documentary evidence as
well as oral evidence. As a general rule, a document is both exclusive and conclusive as
evidence of its terms. This entails that extrinsic evidence is generally inadmissible (a) to
prove the contents of a document, (b) to add to, vary or contradict the terms of a document
and (c) to prove the meaning intended by the author of the document.30

However, extrinsic evidence may be admissible where there are allegations of mistake,
illegality or fraud. Extrinsic evidence may also be admissible in aid of interpretation of a
document.31

In Holmes Limited v Buildwell Construction Companylimited32the plaintiffs agreed in writing

to hire a grader to the defendants. The terms of this agreement included a clause to the effect
that the plaintiffs would provide a driver. The grader was delivered to the defendants but no
driver was provided. The defendants repudiated the contract about one month later. The
plaintiffs alleged that it had been verbally agreed between the parties that the defendants
would provide transport so as to enable the plaintiffs' driver to reach the place where the
grader was to be operated. The plaintiffs further alleged that the defendants failed to provide
the transport and thereby were in breach of the contract. The plaintiffs claimed damages for
the hire of the grader. The defendants counterclaimed for breach of contract by the plaintiffs
in failing to provide a driver.

Held:

(a) Where the parties have embodied the terms of their contract in a written document,
extrinsic evidence is not generally admissible to add to, vary, subtract from or contradict the
terms of the written contract.

(b) By way of exception to the above rule, extrinsic evidence may be admitted to show that
the written instrument was not intended to express the whole agreement between the parties.

29
Supra note 6 p222.
30
Hatchard, J. & Ndulo, M. (1991). The Law of Evidence in Zambia: Case & Materials. Lusaka:
Southern African Institute for Policy and Research. p319.
31
Supra note 6 p222.
32
(1973) Z.R. 97 (H.C.).
 128

(c) Any discussion of verbal conditions before the written agreement was completely
superseded by the written document.

(d) Since the written agreement did not provide that the defendants should provide transport
for the driver the latter had no obligation to do so and the plaintiffs were in breach of their
contract by failing to provide the driver. Their claim for the hire price therefore failed.

Topic 3 - Proof of due execution of private documents

Due execution means the validation of a written instrument, such as a contract or will, by
fulfilling the necessary legal requirements for such instrument.33In the case of public
documents, the mere production of an admissible copy is generally sufficient to satisfy any
requirement of proof of due execution of the document.34 In the case of private documents,
due execution must be proved by evidence, except where the document is more than 20 years
old and comes from proper custody, in which case there arises a presumption of due
execution and so of formal validity.35

Due execution is proved by evidence of the signature of the person by whom the document
purports to be signed and by evidence of attestation, if required for the document in question.
The means of proof of due execution, where required, are: (a) evidence of handwriting; (b)
evidence of attestation; and (c) by an applicable presumption.36

3.1 Authentication of documents executed outside Zambia

In terms of section 3 of the Authentication of Documents Act 37 a document executed outside

Zambia requires authentication. The Act defines authentication as verification of any
signature on a document.

In Lumus Agricultural Services Co. Ltd and Another v Gwembe Valley Development Co. Ltd
(In Receivership)38 it was held that a document not authenticated in accordance with section 3
of the Authentication of Documents Act remains valid and effective as between the parties to
such document but ineffective against a third party.

33
Garner, B. (2009). Black’s Law Dictionary. (9th Ed.). New York: Thompson West. p650.
34
Supra note 2 p692.
35
Ibid., p692. See also: Section 7 of the Evidence Act, Chapter 43 of the Laws of Zambia.
36
Supra note 2 p692.
37
Chapter 75 of the Laws of Zambia.
38
(1997) ZR 1.
 129

3.2 Laying foundation before production of a document

The laying of a foundation of an item (a document for our purposes) entails authenticating an
item of evidence by its proponent whereby, the proponent must present proof that the article
is what the proponent claims it is. For example, the proponent of a letter must present proof
of its authenticity before offering the letter into evidence. Proof of the letter's authenticity is
part of the letter's ―foundation‖ or ―predicate‖.39

In OTK Limited v Amanita Zambiana Limited, Diego Gan-Maria Casilli, Amanita Premium
Oils Limited, Amanita Milling Limited40 it was held that the laying of a foundation before
offering a document in evidence is a condition precedent to offering the document for
production.

Topic 4 – Real Evidence

Real evidence is evidence from which the tribunal of fact can draw conclusions from its own
perception. Real evidence is the name usually given to quite diverse forms of evidence which
have in common the characteristic that the tribunal of fact is invited to observe and draw
conclusions from its observation of things, persons, places, or circumstances. Real evidence
may, therefore, rank among the most cogent kinds of evidence, but also among the most
difficult to assess in terms of weight, at least before the event. Real evidence may consist of
(a) material objects; (b) the appearance of persons or animals; the demeanour of witnesses;
(c) views of the locus in quo; and (d) video or audio tapes, film, photographs, etc.41

Study Questions

1. Becky a prosecution witness, by viewing a Muvi TV news item, identified Mushala as a

member of a group of persons who had caused a serious public disturbance during the official
opening of Parliament. The original film was retained by Muvi TV, and at trial the
prosecution relied on a video-cassette which was a copy of the original film. Mushala
strongly contended that the film was edited and seriously distorted the accuracy of the
original film. The subordinate court was satisfied that the video-cassette relied upon by the
prosecution was an authentic copy of the original film. Mushala is convicted of conduct
likely to breach the peace. How should the appeal be dealt with?

39
Imwinkelried, E. J. (1998). Evidentiary Foundations. (4th Ed). Virginia: Lexis Law Publishing. p2.
40
(2005)/HPC/0199.
41
Supra note 2 p694.
 130

2. Kafue Lodge and Pleasure Resort Ltd (based in Zambia) and Super Zim Boats Ltd (based
in Zimbabwe) enter into an agreement for the supply of 5 speed boats to the former by the
latter. The contract was done via email. The Zimbabwean company was the offeror. The
boats are supplied upon the Zambian company paying 50% of the purchase price. The
Zambian company defaults on the outstanding balance when it falls due. In the meantime, the
Zambian company has since sold 3 of the supplied boats to Zambezi Pleasure Resort (Z) Ltd.
The Zimbabwean company commences an action in Zambia to recover the outstanding
balance plus damages for breach of contract. Zambezi Pleasure Resort (Z) Ltd is also joined
to the suit for not having obtained good title in the 3 boats purchased by it from the first
defendant. Both Zambian companies contend that the first contract having been executed in
Zimbabwe, it requires authentication to be used in Zambia. Discuss all the legal issues
involved.
 131

BIBLIOGRAPHY

Allen, C. (2001). Practical Guide to Evidence. (2nd Ed.). Cavendish: Cavendish Publishing
Limited.
Blackstone, W. (1829). Commentaries on the Law of England: Book IV. Dublin: Maxwell
Stevens & Sons.
Garner, B. (2009). Black’s Law Dictionary. (9th Ed.). New York: Thompson West.
Glover, R. (Ed.). (2013). Murphy on Evidence. (13th Ed.). Oxford: Oxford University Press.
Hart, H. L. A. (1994). The Concept of Law. (2nd Ed.). Oxford: Oxford University Press.
Hatchard, J. &Ndulo, M. (1991). The Law of Evidence in Zambia: Case & Materials. Lusaka:
Southern African Institute for Policy and Research.
Imwinkelried, E. J. (1998). Evidentiary Foundations. (4th Ed). Virginia: Lexis Law
Publishing.
Jefferson, I.. (2009). Criminal Evidence. (9th Ed.). New York: Anderson Company.
Kulusika, S. (2005). Texts, cases and materials on criminal law in Zambia, Lusaka: UNZA
Press.
Law, J. (Ed.). (2009). Oxford Dictionary of Law. (7th Ed.). London: Oxford University Press.
May, R. (1990). Criminal Evidence. London: Sweet and Maxwell.
Murphy, P. (2008). Murphy on Evidence. (10th Ed.). Oxford. Oxford University Press.
Tapper, C. (2007). Cross and Tapper on Evidence. (11th Ed.). (Oxford: Oxford University
Press.
Taylor, J.P. (1931). A Treatise on the Law of Evidence. Vol. 2. London: Sweet & Maxwell.
Twining, W. (1994). Rethinking Evidence:Exploratory Essays. Illinois: Northwestern
University Press.